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Full text of "North Carolina Register v.7 no. 8 (7/15/1992)"

r«/KF/V 7V ^/ / ^ 



The 
NORTH CAROLINA 

REGISTER 



TITTU 
I TICK 



IN THIS ISSUE 

EXECUTIVE ORDERS 

IN ADDITION 

Final Decision Letter 



RECEIVED 
JUL 17 1992 

LAW LIBRARY 



PROPOSED RULES 
Administration 

Economic and Community Development 
Environment, Health, and Natural Resources 
Human Resources 
Public Education 
Transportation 

RRC OBJECTIONS 

RULES INVALIDATED BY JUDICIAL DECISION 

CONTESTED CASE DECISIONS 

ISSUE DATE: July 15, 1992 

Volume 7 • Issue 8 • Pages 791-902 



TNFORMATTON ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATE rnj 



NORTH CAROLINA REGISTER 



The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars (S105.00) for 24 issues. 
Individual issues may be purchased for eight dollars (S8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 27611-7447. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments; the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule that 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



TEMPORARY RULES 

Under certain emergency conditions, agencies m; 
temporary rules. Within 24 hours of submission to 
Codifier of Rules must review the agency's written stati 
findings of need for the temporary rule pursuant to the prov 
G.S. 150B-21.1. If the Codifier determines that the findir 
the criteria in G.S. 150B-21.1, the rule is entered into theN 
the Codifier determines that the findings do not meet the 
the rule is returned to the agency. The agency may supple 
findings and resubmit the temporary rule for an additiona 
or the agency may respond that it will remain with it 
position. The Codifier, thereafter, will enter the rule 
NCAC. A temporary rule becomes effective either \ 
Codifier of Rules enters the rule in the Code or on tl 
business day after the agency resubmits the rule without 
The temporary rule is in effect for the period specified in th 
180 days, whichever is less. An agency adopting a tempoi 
must begin rule-making procedures on the permanent ml 
same time the temporary rule is filed with the Codifier. 



NORTH CAROLINA ADMINISTRATIVE C )E 



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The North Carolina Administrative Code (NCA 
compilation and index of the administrative rules of 
agencies and 38 occupational licensing boards. The 
comprises approximately 15,000 letter size, single spaced i 
material of which approximately 35% of is changed ai 
Compilation and publication of the NCAC is mandated 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state 
is assigned a separate title which is further broken d 
chapters. Title 21 is designated for occupational licensing tx 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum 
two dollars and 50 cents (S2.50) for 10 pages 
plus fifteen cents (SO. 15) per each additional page 

(2) The full publication consists of 53 volumes, tot 
excess of 15,000 pages. It is supplemented 
with replacement pages. A one year subscriptioi 
full publication including supplements 
purchased for seven hundred and fifty 
(S750.00). Individual volumes may also be pu: 
with supplement service. Renewal subscripti 
supplements to the initial publication are available 

Requests for pages of rules or volumes of the NCAC sh 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLIN 
REGISTER 



age 
> to 



The North Carolina Register is cited by volume, issu 
number and date. 1:1 NCR 101-201, April 1, 1986 r< 

Volume 1, Issue 1, pages 101 through 201 of the North C i 
Register issued on April 1, 1986. 



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FOR INFORMATION CONTACT: Office 
Administrative Hearings, ATTN: Rules Division, 
Drawer 27447, Raleigh. North Carolina 27611-7447. (< 
733-2678. 



NORTH 
CAROLINA 
REGISTER 



ISSUE CONTENTS 




OJfice of Administrative Hearings 

P. O. Drawer 27447 

Ralegh, NC 27611-7447 

(919) 733- 2678 



Julian Mann III, 

Director 
James R. Scarcella St., 

Deputy Director 
Molly Masich, 

Director APA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial A ssistant 
Jean Shirley, 

Editorial Assistant 



I. EXECUTIVE ORDERS 

Executive Orders 169-170 791 

II. IN ADDITION 

Final Decision Letter 793 

III. PROPOSED RULES 
Administration 

Motor Fleet Management 794 

Economic and Community 
Development 

Departmental Rules 801 

Environment, Health, and 
Natural Resources 

Departmental Rules 826 

Fnvironmental Management.... 830 

Human Resources 

Medical Assistance 816 

Mental Health, Developmental 
Disabilities and Substance 
Abuse Services 809 

Public Education 
Elementary and Secondary 852 

Transportation 
Highways, Division of 856 

IV. RRC OBJECTIONS 861 

V. RULES INVALIDATED BY 

JUDICIAL DECISION 866 

VI. CONTESTED CASE 
DECISIONS 

Index to AI.J Decisions 867 

Text of Selected Decisions 883 



ML CUMULATIVE INDEX.. 



900 



NORTH CAROLINA REGISTER 

Publication Schedule 

(May 1992 - December 1993) 



Issue 


Last Day 


Last Day 


Earliest 


Earliest 


Last Day 


* 


Date 


for 


for 


Date for 


Date for 


to 


Earliest 




Filing 


Electronic 


Public 


Adoption 


Submit 


Effective 






Tiling 


Hearing 


by ■ 

Agency 


to 
RRC 


Date 



**+****+**t*+********+**++**+**+*+****+******+t*++***+**++******++* 



05/01/92 
05/15/92 
06/01/92 
06/15,92 
07/01/92 
07/15,92 
08/03/92 
08/14/92 
09/01,92 
09/15/92 
10/01,92 
10/15,92 
11/02/92 
11/16,92 
12/01,92 
12/15/92 
01/04,93 
01/15,93 
02,01/93 
02/15,93 
03/01,93 
03/15,93 
04/01,93 
04 15 V 
05/03,93 
05/14,93 
06/01,93 
06/15,93 
07,01,93 
07/15,93 
08/02,93 
08/16/93 
09/01/93 
09/15,93 
10/01/93 
10,15,93 
11/01/93 
11/15,93 
12 01 93 
12/15,93 



04/10/92 
04/24/92 
05/11/92 
05/22/92 
06/10/92 
06/24/92 
07/13/92 
07/24/92 
08/11,92 
08/25/92 
09/10,92 
09/24/92 
10/12/92 
10/23/92 
11/06/92 
11/24/92 
12/09/92 
12/22/92 
01/08/93 
01/25 93 
02,08,93 
02/22-93 
03/11/93 
03/24/93 
04/12/93 
04,23/93 
05/10/93 
05/24 93 
06/10/93 
06/23 93 
07/12/93 
07/26/93 
08/11/93 
08/24/93 
09/10/93 
09/24/93 
10/11/93 
10/22/93 
11/05/93 
11/24/93 



04/17/92 
05 01 92 
05 18/92 
06,01,92 
06,17/92 
07/01/92 
07,20/92 
07/31/92 
08/18/92 

09 01/92 
09,17/92 

10 01 02 
10 19 92 
10 30 92 
11/13/92 
12.01/92 
12 16 92 
12 31 02 
01/15/93 
02 01/93 
02/15/93 
03/01/93 
03/18/93 
03,31/93 
04 19'93 

04 30/93 

05 17/93 
06,01/93 
06/17/93 
06. 30 '93 
07/19/93 
08 02 93 
08, 18 '93 
08,31/93 
09/17/93 
10,01/93 
10/18 93 
10 29/93 
11/15/93 
12,0193 



05/16/92 
05/30/92 
06/16/92 
06/30/92 
07/16/92 
07/30/92 
08/18/92 
08/29/92 
09/16/92 
09/30/92 
10/16/92 
10/30,92 
11/17/92 
12/01,92 
12/16,92 
12/30,92 
01/19/93 
01/30/93 
02/16/93 
03/02,93 
03/16/93 
03/30 93 
04/16,93 
04/30/93 
05/18 93 
05/29/93 
06/16,93 
06'30,93 
07/16/93 
07/30/93 
08/17/93 
08/31,93 
09/16,93 
09/30,93 
10/16 93 
10/30/93 
11/16,93 
11/30 93 
12/16 93 
12/30,93 



12 

01 
02 
02 



05/31/92 
06, 14 92 
07/01/92 
07/15/92 
07/31/92 
08, 14/92 
09 02/92 

09 13 92 

10 01/92 
10/15/92 
10,31/92 
11/14/92 
12 02 '92 
12 16,92 

3192 
1493 
03/93 
14 93 
03 03/93 
03 17 93 

03 3193 

04 14 93 

05 01 93 

05 15/93 

06 02 93 

06 13/93 

07 01 93 
07/15/93 
07/31/93 

08 14 93 

09 01 93 

09 15 93 

10 0193 
10 15 93 

10 31 93 

11 14 93 

12 01 93 
12 15 93 
12,31/93 
01 14 94 



06/20/92 
06/20/92 
07/20/92 
07/20/92 
08/20/92 
08/20/92 
09/20/92 
09/20/92 
10/20/92 
10/20/92 
1 1/20/92 
11/20/92 
12/20/92 
12,20/92 
01/20/93 
01/20/93 
02,20/93 
02/20/93 
03/20/93 

03 20/93 
04/20/93 

04 20/93 
05/20/93 
05/20/93 
06/20/93 
06/20/93 
07/20/93 
07/20/93 
08/20/93 
08/20/93 
09/20/93 
09, 20 '93 
10/20/93 
10/20/93 
11/20/93 
11/20/93 
12 20/93 
12/20/93 
01/20/94 
01 '20/94 



08/03/92 

08 03/92 

09 01/92 

09 01/92 
1001,92 

10 01/92 
11/02/92 

1 1 02/92 

12 01,92 
12 01 92 
01 04,93 

01 04,93 

02 01/93 
02,01/93 

03 0193 

03 01/93 

04 01/93 

04 01/93 

05 0393 

05 03 93 

06 01/93 

06 01,93 

07 01/93 

07 01,93 

08 02 93 
08/02/93 

09 01 93 

09 01 93 
10,01/93 

10 01/93 

11 01/93 

11 01 93 

12 01 93 
12 01/93 

01 04 94 
01/04/94 

02 01 94 

02 01 94 

03 01 94 
03 01 94 



* The "Earliest Effective Dale" is computed assuming that the agency follows 
the publication schedule above, that the Rules Review Commission approves the 
rule at the next calendar month meeting after submission, and that RRC delh-ers 
the rule to the Codifier of Rules five (5) business days before the I si business 
day of the next calendar month 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NUMBER 169 

CRIMINAL RECORD CHECKS OF 

APPLICANTS 

FOR DIRECT CARE POSITIONS WITHIN 

THE DEPARTMENT OF HUMAN RESOURCES 

WHEREAS, the State of North Carolina en- 
deavors to promote the safety of the residents 
and clients of institutions operated by the De- 
partment of Human Resources, including pro- 
tection from physical or sexual abuse or related 
conduct, and 

WHEREAS, federal regulations established for 
Intermediate Care Facilities for the Mental Re- 
tarded prohibit the Department of Human Re- 
sources from employing individuals with a 
history of child or client abuse or related conduct 
in its mental retardation centers, and 

WHEREAS, careful reviews of applications and 
employment reference checks have not always 
been effective in screening out applicants for 
employment with histories of client or child 
abuse or related conduct, and 

WHEREAS, a credible source of information 
on North Carolina criminal records of applicants 
for employment in direct care positions is the 
criminal history record information maintained 
by the State Bureau of Investigation, Division of 
Criminal Information ("DCI"). 

NOW THEREFORE, by the authority vested 
in me as Governor by the Constitution and laws 
of North Carolina, IT IS ORDERED: 

I. Criminal Background Investigations. 

The Department of Human Resources shall 
conduct a criminal background investigation 
through access of the criminal history record in- 
formation for individuals who have been selected 
for employment in a direct patient resident / 
client care position in the Division of Services for 
the Blind, Division of Services for the Deaf and 
Hard of Hearing, and the following institutions 
operated by the Division of Mental Health, De- 
velopmental Disabilities, and Substance Abuse 
Services: Western Carolina Center, Black 
Mountain Center, Murdoch Center, O 'Berry 
Center, Caswell Center. Broughton Hospital. 
John Umstead Hospital, Dorothea Dix Hospital, 
Cherry Hospital, Black Mountain Alcohol and 
Drug Abuse Treatment Center, Butner Alcohol 
and Drug Abuse Treatment Center, Walter B. 
Jones Alcohol and Drug Abuse Treatment Cen- 
ter, Whitaker School, Wright School. N.C. Spe- 
cial Care Center and Butner Adolescent 



Treatment Center; provided, however, that such 
individuals shall be required to sign a statement 
which advises them that a criminal background 
investigation will be conducted and that the in- 
formation obtained, if confirmed by the sub- 
mission of fingerprints to DCI, may be used as a 
basis to deny employment. In the event of rea- 
sonable grounds therefor, the Secretary of Hu- 
man Resources or his designee(s) shall request 
further criminal record checks through the sub- 
mission of fingerprints to SCI. 

2. Denial of Employ ment. 

Consistent with federal and state fair employ- 
ment laws, the Department of Human Resources 
shall deny or discontinue employment in direct 
patient resident client care positions of any ap- 
plicant or employee who has been convicted of 
a criminal offense involving or has engaged in 
unlawful sexual conduct, assault or other violent 
behavior, or any type of child abuse, elder abuse, 
client abuse or related conduct, or any felony 
arising out of possession or sale of controlled 
substances. 

3. Administration and Procedure. 

The Department of Justice shall adhere to its 
established procedures and shall charge the De- 
partment of Human Resources a reasonable fee 
when it conducts a criminal record check through 
the submission of fingerprint information pursu- 
ant to this Executive Order. The fee charged 
shall not exceed the actual cost of locating, edit- 
ing, researching, and retrieving the information. 

4. Confidentiality of Information. 

Criminal histories obtained by the Department 
of Human Resources through DCI or otherwise 
shall be confidential and access thereto shall be 
limited to those persons authorized by the Sec- 
retary of Human Resources. Unauthorized dis- 
closure of any such information may result in 
severe disciplinary action, including dismissal, 
and as provided in N.C.G.S. 126-27 and 126-28 
or successor statute. 

5. Effective Date. 

This Order shall be effective immediately. 

Done in the Capital City of Raleigh, North 
Carolina, this the 26th day of June, 19 c )2. 

EXECUTIVE ORDER NUMBER 170 

AMENDMENT TO EXECUTIVE ORDERS 

NUMBER 151 AND NUMBER 163 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



791 



EXECUTIVE ORDERS 



By the authority vested in me as Governor by 
the Constitution and laws of North Carolina, IT 
IS ORDERED: 

Executive Orders Number 151 and Number 163 
are hereby amended to add the following mem- 
bers to the Governor's Advisor,' Commission on 
Militarv Affairs: 



Section 



ESTABLISHMENT 



The Governor's Advisory Commission on Mil- 
itary Affairs shall be comprised of thirty-six (36) 
members. Twenty (20) members are to be ap- 
pointed by the Governor and shall serve for 
terms of two (2) years at the pleasure of the 
Go% r ernor. In addition to the twenty (20) ap- 
pointed members the following sixteen (16) will 
be permanent members: 



(1) 
(2) 



Lieutenant Governor of North Carolina: 
Chairpersons of the Military Affairs Com- 
mittees of the North Carolina House of 
Representatives and the North Carolina 
Senate: 



(3) Secretaries of the Departments of Admij 
istration, Transportation, Environmer 
Health, and Natural Resources, Crin 
Control and Public Safety, and Econom 
and Community Development; 

(4) Base Commanders of Fort Bragg, Cam 
Lejeune, Cherry Point and the Elizabet 
City Coast Guard Air Station; 

(5) Wing Commanders of the 4th Tactic 
Eighter Wing and the 317th Tactical Ai 
lift Wing; 

(6) Executive Director of the North Carolir 
Ports Authority; and 

(7) Adjutant General of the North Carolin 
National Guard. 



The Governor shall designate one of the meir 
bers as Chairperson. 

This Executive Order shall be effective imms 
diately. 

Done in Raleigh, this the 29th day of June, 199; 



792 



7:8 XORTH CAROLINA REGISTER July 15, 1992 



IN ADDITION 



[G.S. /20-30.9fl, effective July 16, 1986, requires that all letters and other documents issued by the 
Attorney General of the United States in which a final decision is made concerning a "change af- 
fecting voting" under Section 5 of the Voting Rights Act of 1965 be published in the North Carolina 
Register. / 



U.S. Department of Justice 
Civil Rights Division 



JRD:LLT:EMP:gmh 
DJ 166-012-3 
92-1942 



Voting Section 
P.O. Box 66128 
Washington, D.C. 20035-6128 



June 23, 1992 



Jesse L. Warren, Hsq. 

City Attorney 

Drawer W-2 

Greensboro, North Carolina 27402 

Dear Mr. Warren: 

This refers to two annexations (Ordinance Nos. 92-42 and 92-43) and the designation of the an- 
nexed areas to election districts for the City of Greensboro in Guilford County, North Carolina, sub- 
mitted to the Attorney General pursuant to Section 5 of the Voting Rights Act of 1965, as amended, 
42 U.S.C. 1973c. We received your submission on April 21, 1992. 

The Attorney General does not interpose any objection to the specified changes. However, we 
note that Section 5 expressly provides that the failure of the Attorney General to object does not bar 
subsequent litigation to enjoin the enforcement of the changes. See the Procedures for the Adminis- 
tration of Section 5 (28 C.F.R. 51.41). 



Sincerely, 



John R. Dunne 

Assistant Attorney General 
Civil Rights Division 



By: 



Steven H. Rosenbaum 
Chief, Voting Section 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



793 



PROPOSED RULES 



TITLE 1 - DEPARTMENT OE 
ADMINISTRATION 

i'\ otice is hereby given in accordance with G.S. 
150B-21 .2 that the Department of Administration 
intends to adopt 1 SCAC 38 .0101 - .0102, .0201 
- .0206, .0301 - .0308, .0401 - .0408, .0501 - .0511, 
.0601 - .0602. .0701 - .0703. 

1 he proposed effective date of this action is Oc- 
tober 1, 1992. 

1 he public hearing will be conducted at 9:00 
a.m. on July 30, 1992 at the Commission Room 
5034. Administration Bui/ding. 116 West Jones 
Street. Raleigh, NC 27602-8003. 



Re 



s as on for Proposed Action: This adoption is 
necessary for the Division of Motor Fleet Man- 
agement's implementation of the statutory re- 
quirements of G.S. 143-341 (8 )i regulating state 
motor passenger vehicles assignments and use. 



Cc 



omment Procedures: Any interested person 
may present his her comments either in writing or 
at the hearing or orally at the hearing. Any person 
may request information, permission to be heard, 
or copies of the proposed regulations by writing 
or calling David McCoy. Department of Adminis- 
tration, 116 West Jones Street, Raleigh. XC 
27603-8003. 

CHAPTER 38 - MOTOR FLEET MANAGEMENT 
DIVISION 

SECTION .0100 - GENERAL PROVISIONS 



.0101 ORGANIZATION 

The Motor Fleet Management Division. 



here- 
after referred to as the Division, is housed in the 



North Carolina Department of Administration. 
Statutory Authority G.S. 143-341 (8)i. 

.0102 PURPOSE 

The Division and its statewide motor pool net- 
work provide efficient management, mainte- 
nance. 



Statutory Authority G.S. 143-341 fSji. 

SECTION .0200 - OPERATION OE THE 
DIVISION'S MOTOR POOLS 

.0201 LOCATION OF FACILITIES 



(a) The Division's Administrative Office an 
Garage is located at: 

1915 Blue Ridge Road 

Raleigh. North Carolina 27607-6403 

Telephone: 919-^33-6540. 
(bi The Division's Raleigh Motor Pool is k_ 
cated in the vicinity of the state governmer 
complex. Its address is^ 

220 East Peace Street 

Raleigh. North Carolina 27604-121 

Telephone: 919^733^7776. 

Statutory Authority G.S. 143-341 ( 8 ji. 

.0202 DISPATCHING 

Dispatching is performed from all motor poc 
facilities. 

Statutory Authority G.S. 143-341 (8 ji. 

.0203 GASOLINE PURCHASES 

Gasoline purchases should be obtained from th 



Division's facilities or other state-owned facilitie 



except when state-owned facilities are closed o 
when travel is out-of-state. When commerce 



establishments are used for the purchase of fu 
the driver must complete form FM-33. attach i 
to the travel log, and forward it to the Divisior 



Onlv regular unleaded gasoline from self-servic 



pumps (except those who have a physical hand 



icap that would prevent the pumping from self 
sen ice pumps) is permitted to be purchased Iron 
commercial pumps. 

Statutory Authority G.S. 143-341(8)1 

.0204 MILEAGE RATES 

(a) Rates charged for the use of the Divisio 
v ehicles axe established hv the Department o 
I he Division's mileage rate in 

re 



Administration. 



eludes all expenses lor operating, servicing, re 

- 1( ~m . c — t 1 — — — 



pairing, and replacing all motor pool vehicle 
under its jurisdiction. 

(b) Agencies shall reimburse the Depart men 
of Administration at the end of each calenda 



month, on a mileage basis at a rate set bv th 
Department of Administration: 



repair, and storage of state-owned — 

passenger motor vehicles. It provides a conven- 
ient source of passenger transportation for all 
state agencies on a statewide basis. 



( 1 ) Permanently and agency assigned vehicli 



will be billed for 1.050 miles per montl 



or actual mileage, whichever is greater 



Vehicles usage will be reviewed to deter 



mine if the assignment is cost effective anc 
serves the best interest of the assignee 



agency and the Division. 
Temporarily assigned vehicles will b 

I'll:.' J. I. : i. f: i! :i):'..'.ilv or 6_U miles fo 
each dav's usage, whichever is greater. I 
the vehicle is checked out after 5:"D p.m 



~94 



:S SORTH CAROLISA REGISTER July 15, 1992 



PROPOSED RULES 



no minimum fee will be assessed for the freeze for radiators, water for battery, wear on 
day the vehicle is checked out. If the ve- belts, and proper inflation of tires. This service 
lucle is returned before 8:00 a.m., no should be performed when fuel is purchased or 
minimum fee will be assessed for the day at least weekly, 
the vehicle is returned. 1 lowever, a mini- 
mum fee of 60 miles will be assessed for Statutory Authority G.S. l43-341(8)i. 
each temporary' assignment made for less 
than 24 hours. 



Statutory Authority G.S. 143-341 (8)i. 

.0205 CREDIT CARDS AND PUMP KEY 

There are two credit cards and a gasoline pump 
key issued to each vehicle. The Motor Fleet 
Management Universal Gasoline Credit Card 



(used only when state pumps are closed or travel 
is out-of-state) and the Department of Trans- 
portation [DOT] Credit Card (used at some 
DOT and state facilities) are issued to each vehi- 



cle and are to be used for that vehicle only. A 
gasoline pump key is to be used at HOT facilities 



having special self-service pumps. A listing of 
county maps showing the location of DOT gas- 
oline facilities and hours of operation is found in 
the Division's Manual, which is stored m each 
vehicle's glove box. 

Statutory Authority G.S. 143-341(8)1 

.0206 SERVICE EOR NON-MOTOR POOL 
VEHICLES 

Gasoline and oil shall be furnished to any 
state-owned passenger vehicle at the Division 
rates. Other services and minor repairs may be 
obtained on a first-come reservation basis as time 
permits. 

Statutory Authority G.S. 143-341 (8Ji. 

SECTION .0300 - MAINTENANCE AND CARE 
OE VEHICLES 

.0301 GENERAL 

The maintenance of permanent assigned and 
agency assigned vehicles is the responsibility of 
the individual and agency to whom the vehicle is 
assigned. The driver or agency may obtain any 
required maintenance at any Division motor pool 



tacihtv or any approved 
Charges for this mainte- 



or any state-owned 
commercial facility, 
nance are billed to the Division. 1 he mainte- 
nance of temporarily assigned vehicles is the 
responsibility of the Division. 

Statutory Authority G.S. 143-341 (8 Ji. 

.0302 ROUTINE MAINTENANCE 

Drivers shall routinely check their assigne d ve- 
hicles to insure proper oil level, water and anti- 



.0303 PREVENTIVE MAINTENANCE 

Preventive maintenance on vehicles is to be 
performed at scheduled intervals established by 
the Division. If maintenance is not performed 
within plus or minus 500 miles of the schedule, 



vehicle assignment is subject to termination. 
Statutory Authority G.S. 143-341 (8 Ji. 

.0304 REPAIRS AND MAINTENANCE 

The driver or agency may obtain required 
maintenance or repairs at the Division's Garage, 
other state-owned facilities or any commercial 
facility. All maintenance and repairs must have 
prior authorization by calling 1-SOO-277-S 181 or 
"733-4043 (in Raleigh calling area) with the details 
of the maintenance and an estimate of the cost. 
Properly authorized charges for maintenance or 
repairs should be hilled to the Division for pay- 
ment. In case of holidays, nights or weekends, 
an authorization request must be Left with the 
Division's answering service. Any unauthorized 
repair expense will be billed to the agency to 
which the vehicle rs assigned. 

Statutory Authority G.S. 143-341 (8)i. 

.0305 ANNUAL SAFETY INSPECTIONS 

All vehicles shall be inspected annually as re- 
quired by North Carolina safety inspection laws. 

I his inspection is billed to the Division. It is the 
responsibility of the assigned driver and agency 
to assure that the vehicle has a valid inspection 
slicker 

Statutory Authority G.S. 143-341 (8 Ji. 

.0306 ACCIDENT REPORTING 

(a) All accidents involving state vehicles or 
other property damage, regardless of amount of 
damage, must be reported by calling 
1-800-277-8181 or 733-4043 (in Raleigh calling 



area). Information which must be obtained from 
the other driver involved in the accident is: 
name, address, telephone number, license plate- 
number, insurance company, and policy number. 
An Accident Report Form I M- 16 must be 
completed and forwarded immediately to the 
Division. All accidents involving injury or dam- 
age to a state vehicle must be reported to Trav- 
elers Insurance Company, promptly as follows: 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



795 



PROPOSED RULES 



Q| In North Carolina, call 1-8(10-762-3804 ex- 
cept in the following counties: Bertie, 



questing agency. Radar detectors are not allow 
in state vehicles. 



Currituck, Hertford, Pasquotank. Camden, 
Dare, Hvde. Perquimans. Chowan, Gates, 



Martin, and Washington. In these counties 
call 8(14-330-4788. collect. 

(2) On weekends, after hours and holidays 
when there is serious injur, or death, call 
immediately 1-800-243-3840. 

(3) Accidents with minor property damage may 
be reported to Travelers Insurance Com- 
panv on the Travelers' form. 



Statutory Authority G.S. 143-341 (8)i. 

.0307 DECALS ON VEHICLES 

Decals may be affixed to vehicles owned by the 
Division when done in accordance with the fol- 
lowing provisions: 

( 1) The decal and method of fixture must be 
approved by the Division prior to applica- 
tion of decal. 

(2) The decal must not cover an area greater 
than 200 square inches. 

(3) No more than two decals may be affixed to 
the vehicle and must be affixed one each to 
the front doors of the vehicle. 

(4) The decal must be applied and removed 
without defacing or devaluing the vehicle. 

(5) The cost of decal material, application, and 
removal of decal must be borne by the using 
agency. 



Statutory Authority G.S. 143-341 f 8 Ji. 
SECTION .0400 - ASSIGNMENT OF VEHICLE 

.0401 TYPES OF VEHICLE ASSIGNMENTS 

(a) Individual Permanent Assignment: Stat 
owned passenger-carrying vehicles may be p_e 
manentlv assigned to state employees for offici 
state business when the vehicle is expected to 
driven a minimum of 3,150 miles per quarte 



Individuals whose duties are routinely related 



public safety or are exposed to Iife-threatenii 

situations are exempt from the 3,150 miles g 

quarter requirement. 

(h) Agcncv-Assigned Vehicles: States-owru 



passenger earning vehicles may be assigned to 
state agency or institution when the vehicle 



expected to be driven an average of 1.050 mil 
per month to conduct official state busine: 



Vehicles mav also be assigned to a state agenc 



or institution when the vehicle is needed for 
unique use involving a minimum number of lo 
mileage trips per month as determined by tl 
agency and approved bv the Division. The yi 
hide cannot be driven continuously bv one en 
plovee and must be made regularly' available 
all persons in the agency. Agency-assigned yj 
hides must consistently be driven the 3.150 mill 



(6) The cost of any repairs resulting from in- 
advertent defacing must be borne bv the us- 



per quarter minimum 

(c) Temporary Assignment: State-owned veh 
cles mav be temporarily assigned to state en 
plovees for official state business or whi 



mg agency. All such repairs must restore the permanently assigned vehicles are being repairs 



vehicle to its original condition 



(7) Any exception to these Rules and Regu- 
lations must he approved by the Division in 
advance. 

(8) Bumper stickers are not allowed on 
Division-owned vehicles unless approved by 
the Division in advance. 

Statutory Authority G.S. 143-341 (8)i. 

.0308 INSTALLATION OF EQUIPMENT 

Special equipment required in the line of duty 
mav be installed on Division vehicles upon re- 
ceiving prior written authorization. The using 
agency must bear the cost of purchase, installa- 
tion, maintenance, and removal ot^ such equip- 
ment. Any defacing to or devaluing of the 
vehicle resulting from installation or removal of 
special equipment must be repaired at the ex- 
pense of the using agency. Other equipment not 
furnished with the vehicle at^ the time of assign- 
ment by the Division shall be paid by the re- 



Vehicles for temporary assignment will be cer 
t rally controlled and housed by the Division, a 
signed from a motor pool for a specific purpost 



and returned to the motor pool at the end of th 
assignment. 

Statutory Authority G.S. 143-341 (8)i. 

.0402 REQL ESTS FOR ASSIGNMENT OF 
VEHICLES 

(a) Temporary assignment requests for tempo 
ran assignment of vehicles shall be made o_ 
Form 1 \ 1 - 2 signed by the proper agency supei 
visor and presented to the dispatcher at the as 
signing motor pool, forms shall be provided b 
the Division to all requesting agencies. 

( 1 j Before a vehicle mav be picked up. a vali' 
North Carolina driver's license shall b 
presented to the motor pool dispatcher b; 
the assigned driver and all other passen 
gers who are subject to drive the vehicl 



during its temporary assignment. 



796 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



(2) Temporary assignments are intended to 
meet the needs of state employees \yho 
require transportation on a short-term 
(one to ten davs) hasis. All temporarily 
assigned yehieles shall be returned imme- 
diately upon completion of tnp or a\_ end 
of use. With documented justification, 
temporary assignments may be made for 
up_ to 30 calendar days. 

(3) Temporary assignments shall not be re- 
newed for any reason, but may be ex- 
tended in cases of emergency or when 
extenuating circumstances make it im- 
practical to return the vehicle as sched- 
uled. In all cases, the motor pool from 
which the vehicle was dispatched must be 
notified by the driver to obtain prior ap- 
proval for its extension. 

(4) If the vcliicle assignment is originally re- 
quested for a penod in excess of 30 calen- 
dar davs, the request must be processed 
as a permanent assignment (see "Perma- 
nent Assignments" in this Rule). 

(5) All temporarily assigned vehicles shall be 
returned to the motor pool from which it 
was originally dispatched. During the 
temporary assignment, the driver should 
make note of any malfunctions encount- 
ered and any repairs and adjustments 
needed and report them to a fuel pump 
attendant upon returning the vehicle to 
the motor pool. 

(b) Permanent Assignments. Requests for ve- 
hicles to be assigned to individuals or agencies 
on a permanent or indefinite basis or for a period 
in excess of 30 calendar davs shall be made on 
Form FM-30, signed by the department head or 
his/her designee, and forwarded to the Division 
at least 10 calendar days prior to date of need. 
A photocopy o( the assigned driver s valid North 
Carolina driver's license shall be submitted with 
the FM-30. All permanently assigned vehicles 
shall be returned to Motor Fleet Management 
on Blue Ridge Road. Raleigh, at the end of as- 
signment unless otherwise instructed by the Di- 
vision. I he Division shall not approve requests 
for assignment or reassignment when the purpose 
of that assignment or reassignment is to provide 
any employee with a newer or lower mileage ve- 
hicle because of his or her rank, management 
authority, or length of service or because of any 
non job-related reason. A reassignment (a 
transfer o[ a vehicle from one employee to an- 
other) ma\ occur when tilling vacant positions to 
which a vehicle is assigned. A form FM-30 must 
be submitted by the requesting agency and ap- 
proved by the Division betore the vehicle may 
be reassigned. The requesting agency must at- 



tach a memorandum to the FM-30 explaining, 
the request for reassignment. If approved, a Di- 
vision approved copy of the FM-30 will be sent 
to the agency granting permission for the new- 
driver to take possession of the vehicle. All ex- 
changes of lower mileage and or better quality 
vehicles to senior or higher ranking employees 
and higher mileage and or lower quality vehicles 
to junior employees will be denied. 

(c) The Division will not assign "special use" 
vehicles such as four wheel drive vehicles or law 
enforcement vehicles to anv agency or individual 
except upon written justification, verified by his- 
torical data, and accepted by the Secretary of the 
Department of Administration. 

( 1) All assignments of four-wheel drive and 
law enforcement vehicles must be re- 
viewed. A memorandum, accompanied 
by historical data, must be sent to the 
each individual vehicl 



Division 
signed. 



as- 



(2) All requests for "special use" vehicles must 
be on a completed FM-30 accompanied 
by a memorandum explaining the in- 
tended use of the vehicle. Attached to the 
memorandum should be evidence sub- 



01 



(3) 



stantiatina the necessity for this tvi 



vehicle, which must be verified by histor- 
ical data. 

I he agency or individual to whom the 
vehicle is assigned is responsible for for- 
warding this information to the Division. 
I he Division will forward all justification 
requests to the Secretary of the Depart - 
ment of Administration. 



(4) 



I he agency will be notified, in writing, of 
the Secretary's decision. If the assignment 
request is denied, the requesting agency 
will be notified by the Division of a date 
for the return of the vehicle to the Divi- 
sion. 



Statutory Authority (7.5. 143-341 (8 li. 

.0403 DENIAL AND APPEAL PROCEDl RES 

In the event a request for a permanently or 
agency assigned vehicle is denied, the agency 
head may appeal the decision of the Division to 
the Secretary of the Department of Adminis- 
tration. in writing, within 10 days of denial of 



of anv request. 



Statutory Authority G.S. 143-34/ (8 Ji. 

.0404 VIOLATIONS 

A copy of all traffic violations received by state 
employees while operating state-owned vehicles 
is received bv the Director ot the Division. An 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



797 



PROPOSED RULES 



inquiry letter is sent to the department head and 
a response is requested. If a state employee is 
nr. olved in repeated infractions, he she may be 
subject to denial of the use of any state-owned 
vehicle. 

Statutory Authority G.S. 143-341(8)1 

.0405 REMOVAL OF VEHICLES FROM 
INDIVIDUAL AND AGENCY 

ASSIGNMENT 

Permanent vehicle assignment to individuals or 
agencies may be revoked if anv of the following 
occur: 



ill 11 lh£ vehicle is used for anv purpose other 
than official state business. 

( 2) If reports are not submitted to the Depart- 
ment of Administration, or if the report is 
inaccurate, incomplete or correction is not 
made within 30 days of request. 

(3) If false information is willfulls and know- 
ingly submitted on anv report or applica- 
tion. 

(4) If reports or forms are not signed properly 
and correction is not made within 30 davs 
of a request to do scr 

(5) If vehicle abuse occurs. 



Abuse includes 



but is not limited to. improper care and 
maintenance of the vehicle 1 excess and ex- 
tended filth of vehicle), willful damage to the 
vehicle (destruction of interior or exterior) 
and rciklcss disregard tor the proper opera- 
tion of the vehicle (excessive moving or 
standing violations). 
(6) If the vehicle is not being driven the 3. 150 
quarterly minimum mileage require- 



ment and lower mileage cannot be iiiMificd. 
( 7) It substantiated violation ol Motor Vehicle 

law s are committed. 
( S) It other rules and regulations or policies are 

willfully violated. 

Statutory Authority G.S. J 43-34/ (8)1 

.0406 TERMINATION PROCEDURES 

The Division shall revoke the assignment or re- 
quire the department owning the vehicle to re- 
voke the assignment of a state-owned passenger 
motor vehicle, pickup truck or Van when anv 
one of the conditions cited previously in Rule 
.0405 of this Section have been established to a 



reasonable certainty 



Agencies may cite abuse 



or anv one of the other conditions set forth in 
Rule J '4H5 of this Section for appropriate agency 
disciplinary' action. The following procedures 
shall be used bv the Division: 
( 1 ) Complaints, concerns, and questions re- 
ceived bv the Division are acted upon and a 



written notice is sent to the proper depart- 
ment head. 

(2) Notification by the Division of a vehicle 
complaint will include specific documenta- 
tion to support such claim. Within 10 davs 
a written reply should be received by the 
Division regarding the complaint unless an 
extension is granted. 

(3) The Division will review the allegation and 
verify all documents supporting the 
allegation. Further, the Division will review 
the response received bv the agency head 
and or alleged offender. 

(4) After a full evaluation of the allegation and 
response, the Director of the Division will 
determine if the vehicle assignment shall be 
revoked. No revocation will occur based on 
an anonymous call. 

(5) The Division reserves the right to tempo- 
rarily terminate a vehicle assignment during 
the course of an investigation. This shall 
definitely be the case under citation of driv- 
ing while impaired or without a valid driver's 
license or anv other major allegation. 

If a vehicle assignment is revoked, the offender 
may appeal the decision of the Divisions Direc- 
tor to the Secretary of the Department of Ad- 
ministration. Anv appeal to the termination of 
a vehicle assignment will be sent to the agency 
head who will forward the appeal to the Division. 
I he Division will send the appeal to the Secre- 
tary of the Department of Administration. If an 
appeal is denied, and the vehicle assignment is 
revoked, a new requisition shall not be honored 
until the Secretary of the Department of Admin- 
istration is assured that the violation for which 
the assignment was previously revoked will not 
recur. 



Statutory Authority G.S. 143-341 (8 Ji. 

.0407 WEEKEND ASSIGNMENTS 

When official state business requires the use of 
a motor pool vehicle on weekends or a state 
holiday, or early departure on Monday or the day 
following a state holiday is required, the em- 
ployee may be assigned a vehicle on Friday aft- 
ernoon or on the afternoon preceding the 
holiday. Such assignments mav be made after 
5:00 p.m. with no charge for the day that the ve- 
hicle is picked up or for the holiday or weekend 
if the car is not being used. 

Statutory Authority G.S. 143-341 ( 8 ji. 

.0408 RETURN OF ASSIGNED VEHICLES 

(a) Vehicles assigned on a temporary basis shall 
be returned to the motor pool at the end of the 



~9S 



7:8 .XORTH CAROLL\A REGISTER July 15, 1992 



PROPOSED RULES 



assignment period unless an extension has been 
requested and approved, 
(b) 1 he Division will schedule replacement 
vehicles based on mileage, time in service, econ- 
omy arid nature of use of each vehicle. It turn-in 
or replacement is required, all permanently as- 
signed vehicles must be returned to the Division's 
Garage on Blue Ridge Road. When returning a 
permanently assigned vehicle, all credit cards as- 
signed to that ve hicle, vehicle registration, travel 



log book, and any other materials issued by the 
Division must be returned. Drivers must turn 
their cars in to Assignment personnel or the 
turn-in will not be recognized by the Division, 
and the agency will continue to be charged tor 
the assignment until the matter is handled prop- 
erly. 

(c) All cases of damages or excessive wear due 
to vehicle misuse or abuse will be billed to the 
driver's agency. 

Statutory Authority G.S. 143-341(8)1 

SECTION .0500 - VEHICLE LSE 

.0501 OFFICIAL LSE ONLY 

(a) State-owned passenger-carrying vehicles 
shall be driven only by state employees and used 
for official state business only. It shall be un- 
lawful for any state employee to use a state- 
owned vehicle for any private purpose 
whatsoever. Commuting privileges approved by 
the Division are not considered a private pur- 
pose. 

(b) An employee with an individual perma- 
nently assigned vehicle may drive the vehicle to 
and from his her home when one or more of the 
following conditions exist: 

( 1) By virtue of his her position, the employee 
is entitled to use the vehicle and is m2 ap- 
proved and authorized by the Secretary 
of .Administration. 

(2) Fmplovee s duties are routinely related to 
public safety or are likely to expose 
him her to life-threatening situations. 

(3) Fmplovee's home ^s his her official work 
station and the vehicle is parked at home 
when not being used for official business. 

(4) State-owned vehicle is required tor a trip 
the following workday and employee's 
home is closer to the destination than the 
regular work station, and the employee 
does not have to report his her regular 
work station before beginning the trip. 

situation 



(5) 



Frequent occurrence of this 
would require the Division's approval 



unless one of the above four conditions 
a PP'V- 

Statutory Authority G.S. 143-341 (8)i. 

.0502 COMMUTING POLICY 

Employees who routinely drive anv state-owned 
vehicle between their home and work station 
shall reimburse the state for mileage. Re- 
imbursement shall be made bv payroll deduction. 
The amount of reimbursement shall approximate 
the benefit derived from the use of the vehicle as 
prescribed by federal law at a rate established by 
the Division and shall be for 20 days per month. 
Commuting privilege requires prior approval of 
the Division. Commuting, for purposes of this 
Paragraph, does not include those individuals 
whose office is in their home, as determined and 
approved by the Office of State Budget and 
Management. Also, this Paragraph does not 
apply to the following vehicles: 

( 1) Clearly marked police and fire vehicles. 

(2) Delivery trucks with seating only for the 
driver. 

(3) Mat bed trucks. 

(4) Cargo earners with over a 14, OOP-pound 
capacity. 

(5) School and passenger buses with over 
20-person capacities. 

(6) Ambulances. 
Hearses. 



Bucket trucks. 



m 
m 

(9) ( ranes and derricks. 

(10) Forklifts. 

(11) Cement mixers. 



( 12) Dump trucks. 

(13) Garbage trucks. 

( 14) Specialized utilit y repair t nicks (except 
vans and pickup trucks). 

(15) Tractors. 

( 16) Inmarked law enforcement vehicles that 
are used in undercover work and are oper- 
ated bv full-time, fully sworn law enforce- 
ment othcers whose primary duties include 
carrying firearms, executing search warrants, 
and making arrests. 

( 17) Anv other vehicle exempted under Section 
274 (d) of the Internal R evenue Code of 
1^54. and Federal Internal Revenue Service 
regulations based thereon. 



1 emporarv and agency assigned vehicles 
may not be driven to an employee's home 



Statutory Authority G.S. !43-341(8)i. 

.0503 TOLL CHARGES 

Charges for fern, bridge, road, or other tolls 
shall not be charged to the Division. Such 
charges shall be paid bv the driver when incurred 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



799 



PROPOSED RULES 



and shall be reimbursed to the driver by his 
agency. 

Statutory Authority G.S. 143-341(8)1 

.0504 PARKING AND STORING OF VEHICLES 

(■i) Individuals and agencies are responsible for 
secure and sale storage and parking of vehicles. 
Repeated acts of vandalism may result in the 
agency being charged for repairs. State-owned 
vehicles shall not be left on non-residential streets 
or highways overnight unless it is necessary due 
Uo mechanical failure or emergency. When a 
state-owned vehicle is parked on a municipal 
street, it shall be the responsibility of the driver 
or the driver's agency to pay all parking fees and 
any parking lines or other lines assessed against 
the vehicle. The vehicle may be parked in a 
commercial or municipal parking facility pro- 
vided the driver or the drivers agency pays for 
anv parking fees. The assigned driver shall be 
responsible for any towing fees resulting from 
improper parking. 

(b) The Division shall not be responsible for 
property' left m parked vehicles at any location 
including the Motor Pool Garage. Further the 
Division shall not be responsible for the cost of 
duplicate keys other than those that are issued 
when the car is assigned. Also, the Division shall 
not be responsible for the cost associated with 
locking a key in a vehicle. 

(c) Parking citations are the responsibility of 
the assigned drncr or the driver s agency at the 
time of issue. If a parking citation is not paid 
within a two-week penod . a notice is sent to the 
Division and forwarded to their assigned driver. 
Excessive unpaid parking citations received by 
the Division for the same driver mav constitute 
vehicle abuse. 



Statutory Authority G.S. 143-341(8)1 

.0505 MOTOR VEHICLE LAWS AND 
ORDINANCES 

ii lg lli£ responsibility of the driver to observe 
all state motor vehicle laws and municipal ordi- 
nances. All violations and resulting lines shall 
be the responsibility of the driver involved. 

Statutory Authority G.S. 143-341(8)1 

.0506 HITCHHIKERS 

Hitchhikers are not permitted to ride in state- 
owned vehicles. 



Statutory Authority G.S. 143-341(8)1 
.0507 RELATIVES 



Spouses and children of state employees ma 
accompany them in state-owned vehicles if suffi- 
cient space is available and all travel is strictly for 
official state business. No family pets are per- 
mitted in state-owned vehicles. Leader dogs for 
the blind are excluded from this restriction. 



Statutory Authority G.S. 143-341(8)1. 

.0508 NON-STATE EMPLOYED PERSONS 

Non-state employed persons may accompany 
state employees driving state-owned vehicles 
when they have an interest in the purpose of the 
trip and their presence is related to state business. 
Students of universities and colleges may be pas- 
sengers in state cars to attend athletic events and 
other activities officially sanctioned by the insti- 
tution. provided the proper account is reim - 



bursed at the standard mileage cost rate by the 
student activity fund involved. Non-state em- 
ployed persons, however, are not allowed to drive 
the state-owned vehicle, except for drivers of 
blind or permanently disabled state employees. 
Also excepted are graduate students enrolled in a 
state-supported college or university whose edu- 
cational training requires the use of a state-owned 
vehicle. 

Statutory Authority G.S. 143-341(8)1 

.0509 USE OF STATE-OWNED VEHICLES FOR 
PRIVATE PLRPOSES 

When an employee is required to use a state- 
owned vehicle for travel while away from his her 
work station, the vehicle mav be used for travel 
to obtain meals and other necessities, but not for 
entertainment or any personal purposes. A state 
employee mav not use a state -owned vehicle for 
obtaining meals unless he 'she is in travel status, 



approved commuter status, or approved office in 
home. Under no circumstances mav a state em- 
ployee operate a state-owned vehicle while under 
the influence of intoxicating beverages, drugs, or 
substances, or transport (except in performance 
of law enforcement duties) these items in a 
state-owned vehicle. 



Statutory Authority G.S. 143-341(8)1. 

.0510 OUT-OF-STATE TRAVEL 

1 here are no special requirements to use a 
state-owned vehicle for travel in the continental 
IS. If a vehicle is to be dnven to Canada or 
Mexico the driver must contact the Division 30 
days ahead of time so the proper automotive in- 
surance protection may be obtained. 

Statutory Authority G.S. 143-341(8)1 



800 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



.051 1 REPLACEMENT OF VEHICLES 

The Division shall formulate a replacement 
schedule for state-owned vehicles based upon 
accumulated mileage, time in service, and nature 
of use for each vehicle. 

(1) The Division shall ensure that state-owned 
vehicles are not normally replaced until the 
vehicle has been driven at least 90,000 miles. 
The Division will schedule replacement at 
90.000 miles. 

(2) All cases of damages or excessive wear due 
to vehicle misuse or abuse will be billed to 
the driver's agency. 

Statutory Authority G.S. 143-341(8)1. 

SECTION .0600 - USE OF PRIVATELY OWNED 
VEHICLES 

.0601 STALE POLICV ON USE OF PRIVATE 
VEHICLES 

G.S. 138-6 provides for reimbursement of state 
employees for actual mileage driven when using 
their private vehicles on official state business. 
Reimbursement shall not exceed the rate charged 
for motor pool vehicles or normal air coach fares 
when private vehicles are used for the conven- 
ience of the employee. 

Statutory Authority G.S. 138-6; 143-341(8)1 



.0602 REIMBURSEMENT AT STATUTORY 
RATE 

The statutory' rate for use of a private vehicle is 
the rate of reimbursement set bv the legislature. 
The current rate is twenty-five cents (_$ .25) per 
mile. Employees may be reimbursed by their 
agency at statutory rates when using their per 



sonal vehicles for state business when the round 
trip does not exceed 60 miles and travel is ap- 
proved bv their agency head. When trips are to 
exceed 60 miles, agencies shall use a state vehicle 
if one is available within the Raleigh servicing 
area. If a motor pool vehicle cannot be supplied, 
the motor pool dispatcher must stamp the FM2 
form before the trip is made in a private vehicle, 
indicating a motor pool vehicle is unavailable 
when needed. Statutory rates may also be paid 
to employees with physical handicaps when 
equipment for operating a vehicle is not available 
on state-owned vehicles. Also, when use of a 
private vehicle is in the best interest of the state 
and results from the particular requirements of 
the employee's duties, statutory rates may be 
paid. Reimbursement at statutory rates shall be 
limited to actual miles driven on official state 
business only. 



Statutory Authority G.S. 13S-6; 143-341(8)1 

SECTION .0700 - MISCELLANEOUS 
PROVISIONS 

.0701 TRANSPORTATION TO AND FROM 
MOTOR POOLS 

The motor pools do not provide local trans- 
portation for persons who must leave their vehi- 
cle for service. Nor is local transportation 
provided to a motor pool when a temporary ve- 
hicle is picked up at the beginning of a trip. Ar- 
rangements should be made for local 
transportation prior to arriving at a motor pool. 

Statutory Authority G.S. 143-341(8)1. 

.0702 USE OF PRIVATE LICENSE PLATES 

The Division may not assign private license 
plates to anv state-owned vehicle except as pro- 
vided in G.S. 14-250. 



Statutory Authority G.S. 14-250; 143-341(8)1. 

.0703 DRIVING UNDER ADVERSE WEATHER 
CONDITIONS 

Temporarily assigned vehicles will not be issued 
during adverse weather conditions such as accu- 



mulated snow, sleet, or ice on roadways. Tem- 



porarily assigned vehicles already requested may 
be cancelled or delayed at the discretion of the 
Division in the event of anv adverse weather 
conditions. Drivers of vehicles on permanent 
assignment, who drive during adverse weather 
conditions, are cautioned to take extreme care 
and employ safety measures to ensure the safety 
of driver and passengers. Any damage to 
Division-owned vehicles operated during adverse 
weather conditions shall be paid by the using 
agency when it is found that such damage re- 
sulted from negligence on the part of the driver. 



Drivers are requested to turn on headlights while 
driving during inclement weather and are re- 
quired by state law to turn on headlight s when 
operating windshield wipers. 

Statutory Authority G.S. 143-341 (8 )i. 

TITLE 4 - DEPARTMENT OF ECONOMIC 
AND COMMUNITY DEVELOPMENT 

iV otice is hereby given in accordance with G.S. 
150B-2/.2 that the Department of Economic and 
Community Development intends to adopt rules 
cited as4NCAC IK .0101 - .0105, .0201 - .0207, 
.0301 - .0302. .0401 - .0405. 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



801 



PROPOSED RULES 



Th 



he proposed effective date of this action is Oc- 
tober 1, 1992. 

1 he public hearing will be conducted at 1:00 
p.m. on August 17, 1992 at the Claude Pope 
Room, 2nd Floor, Dobbs Building, 430 N. 
Salisbury- Street, Raleigh, NC 27611. 

JXeason for Proposed Action: Rules are pro- 
posed to reflect change in agency administering 
the Industrial Development-Community Develop- 
ment Block Grant program and changes in the 
program itself. 



Cc 



ommcnt Procedures: Interested persons may 
present oral comments at the public hearing on 
August 17, 1992 or deliver written comments to 
the Commerce Finance Center no later than Au- 
gust 14, 1992. Oral comments may be limited at 
the discretion of the hearing officer. 

Editors Note: Rules 4 XCAC IK .0101 - .0105. 
.0201 - .0206, .0301 - .0302. .0401 - .0403 have 
been filed as temporary rides effective July 20. 
1992 for a period of ISO days or upon the effective 
date of the permanent rule, whichever is sooner. 

CHAPTER 1 - DEPARTMENTAL RULES 

SUBCHAPTER IK - ECONOMIC 

DEVELOPMENT ACTIVITY OF THE 

COMMUNITY DEVELOPMENT BLOCK GRANT 

PROGRAM 

SECTION .0100 - GENERAL PROVISIONS 

.0101 PROGRAM PURPOSE AND OBJECTIVE 

The purposes and objectives of the North 
Carolina Community Development Block Grant 
program are set out in full in the North Carolina 
Administrative Codes Title 4^ Subchapter 1 9 L . 
as promulgated by the Division of Community 
Assistance of the Department of Fconomic and 
Community Development. While the Division 
of Community Assistance is the lead agency for 
the Community Development Block Grant Pro- 
gram, the Commerce Finance Center is respon- 
sible for the administration of the Fconomic 
Development program and activities conducted 
as the Fconomic Development section of that 
program. Fconomic Development projects and 
grant activities consist ot projects which directly 
create or retain jobs, principally for persons of 
low and moderate income. The major guideline 
requires that 60 percent of jobs created or re- 
tained will be held bv persons who qualified as 
persons of low and moderate income when thev 



were hired by the Employer. Such creation o 
jobs must take place within the grant period. I 
at any time during the grant period the percent 



age of jobs held bv persons who qualified as low 
and moderate income when hired drops below 
51 percent of the jobs retained or created, tht 
beneficiary' or beneficiaries and the grantee wil 
be directly liable for repayment of the grant. Al 
C'DBG's expenditures which directly assist par 
ticipatmg private entities must be returned to the 
Department. Certain other program income, oi 
a portion of other program income, such a; 
connection fees, acreage development fees, oi 
consideration received for the sale of public utili 



ties to private concerns or regulated utilities wil 
be considered as money that will be returned to 
the CDBG F'conomic Development Program 



and used to finance other such Fconomic Devel 



opment projects. One example of such a situ 
ation would be when CDBG Economic 



Development money is originally used to finance 



a gas line owned by a city or county', and the gas 
line is then acquired by a regulated natural gas 
distributor. Some negotiated portion of the ac 
quisition cost paid bv the private utility would 



then be returned to the state and used to finance 



other utihties extensions such as natural gas lines 



to other employers of low and moderate income 
people 

Authority G.S. 143B-43I: 42 U.S.C.A. 5301: 24 
C.F.R. 570.4S9; 24 C.F.R. 570.494. 

.0102 DEFINITIONS 

fa) "Act" means Title I of tjie Housing and 
Community Development Act of 1974, P.F. 
93-383. as amended. 

(b) "Applicant" means a local government 



which makes application pursuant to the pro 
visions of this Subchapter, 
(c) "CDBG" means the State administered 



Community Development Block Grant Pro- 
gram, 
(d) "Chief Fleeted Official" of a local govern- 



ment means either the elected mayor of a city or 
the chairman of a county board of commission- 
ers, 
(e) "Community Development Program" 



means the program of projects and activities to 
be earned out bv the applicant with funds pro- 
vided annually under this Subchapter and other 
resources. 

(f) "HUD" means the U.S. Department of 
Housing and I rban Development. 

(g) "I ocal Government" means any unit of 
general city or county government in the State. 



On 



ow-income tamilics 



are those with a 



family income of 50 percent or less of median- 



so: 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



family income. Moderate-income families are 
those with a family income greater than 50 per- 
cent and less than or equal to 80 percent of 
median-family income. For purposes of such 
terms, the area involved and median income shall 
be determined in the same manner as provided 
for under the Act. 
(rt "Low and Moderate Income Persons" 
means members of families whose incomes are 
within the income limits of low and moderate 



such as land, headquarters or office facili- 
ties, warehouses, distribution centers, 



income families as defined in Paragraph (h) of 
this Rule. 

[]) "Metropolitan Area" means a standard 
metropolitan statistical area, as established by the 
U.S. Office of Management and Budget. 

(lc) "Metropolitan Citv" means a citv as de- 
fined bv Section 102(a)(4) of the Act. 

(ft "Department" means the North Carolina 
Department of Economic and Community De- 
velopment. 

(m) "Project" means any Industrial Project, 



Industrial Processing Facility or Utility Project 
as detined in Paragraph (n) of this Rule and 
which the Economic Development Grant sector 
of the CDBG Program may consider so long as 
they are separable, identifiable and directly create 
or retain jobs, principally for low and moderate 
income people. Such jobs must be created 
within the grant period, 
(n) "Industrial Project" or "Industrial Process- 
ing Facility", will be defined as in 
GS-159C-3( 1 1), or more specifically shall mean 
any land, equipment or any buildings or other 
structures, whether or not on the same site or 
sites, and any rehabilitation, improvement, reno- 
vation or enlargement of, or any addition to, any 
building or structure for use as or in connection 
with any: 



(1) industrial project for industry, which 
project may be any industrial or manu- 
facturing factors' , mill , assembly plant or 
fabricating plant, or freight terminal, or 
industrial research development or labo- 
ratory facility, or industrial processing fa- 
cility or distribution facility for industrial 
or manufactured products; or 

(2) any pollution control project for industry' 
or for public utilities which project may 
be any air pollution control facility, water 
pollution control facility, or solid waste 
disposal facility in connection with any 
factory, mill or plant described in Sub- 
paragraph (o)( 1 ) of this Rule or in con- 
nection with a public utility plant: or 

(3) an\' combination of projects mentioned m 
Subparagraphs (o)( 1) and (o)(2) of this 
Rule. Any project mav include all 
appurtenances and incidental facilities 



sidewalks, utilities, railway sidings, truck- 
ing and similar facilities, parking facilities, 
landing strips and other facilities for air- 
craft, waterways, docks, wharves and 
other improvements necessary or conven- 
ient for the construction, maintenance and 
operation of any building or structure, or 
addition thereto, 
(o) "Utility Project" shall mean any water, 
sewer, electric or natural gas utility improvement 
needed to provide services to the economic de- 
velopment project. It will be important to de- 
lineate which projects are to be owned and 
operated by a unit of government, which projects 
are to be owned by a unit of government and 
leased to an operating utility company, and 
which projects are to be owned and operated bv 
a private utility company. Whenever a utility 
project is owned by a unit of government and 
leased to a private utility operator, there will be 
a detennination as to the point and time where 
the utility project shall be acquired by the private 
operator. In such cases, the project should be 
acquired bv the private operator once it has 
grown or developed to the point that it has what 
would be determined as "commercial project 
feasibility". The purpose of this delineation will 
be to have such utility projects produce Ad 
Valorem tax income for the local units of gov- 
ernment and additional money to be used bv the 
State for new economic development facilities. 
If the project is for infrastructure which will be 
leased to and maintained by a privately owned 
and regulated natural gas distributor, the appli- 
cation will state the terms of the lease between 
the unit of government and the private entity. 
Such stated terms must include provisions as 
follows: 

( 1 ) natural gas lines constructed will be con- 
structed to the safety requirements main- 
tained bv the distributor, and 

(2) the private entity will remit lease payments 
annually to the unit of government equal 
to any moneys which would normally 
have represented a return to stockholders 
on lines constructed under normal busi- 
ness conditions, and 

(3) the private entity will annually determine 
if the leased line has a positive net present 



value. 
made, 



and when 
tb 



that 
private entit\ 



determination is 
will within c )0 



davs purchase the leased line at its cost of 
construction and, 
(4) the unit of government will return those 
private moneys to the Department of 
Economic and Community Development 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



803 



PROPOSED RULES 



and then to an economic development 
rotating fund set up_ to finance new na- 
tural gas lines for industry or industrial 
process users vv hich will create or retain 
jobs for North Carolina citizens. 

Authority G.S. 143B-431; 24 C.F.R. 570.489. 

.0103 ELIGIBLE APPLICANTS 

All counties except those designated as L rban 
counties and all cities except those designated as 
entitlement cities or urban county cities will be 
potential applicants under this Fconomic Devel- 
opment Program. 1: liability to submit a new 
application will involve previous activity or audit 
history in the entire program and current partic- 
ipation in projects which might he funded from 
the current annual grant award from HID. A 
certification of eligibility from the lead agency. 



the Division of Community Assistance, will be 
considered as clear and compelling proof of el- 
igibility. This certification will state the upper 
limits of potential dollar participation available 
to the unit of government. 



Authority G.S. 143B-43I; 42 L.S.C.A. 5301. 

.0104 FINDING LIMITATIONS 

(a) Fconomic Development Grant awards are 
limited hv: 

( 1 ) maximum dollar amounts for each unit 
of government for the Department of 
Housing and Urban Development with 
(HID) money received in any one fund- 
ing sear; and 
(2) maximum dollar amounts for each project. 
Those program and project maximums are spe- 
cifically set out in the Grant Agreement between 
the state and 1 1 1 D and in the official program 
statement issued bv the State and approved by 
HID. 

(b) This rule will set both program and project 
maximum dollar limits as those set out in the ef- 
fective and approved grant agreement from HUD 
and the approved Official Statement from the 
State of North Carolina. If projects have suffi- 



cient measurable impact and community bene- 
fits, especially to low and moderate income 
people, both citv and county governments with 
jurisdiction mav apply for separate project grants 
in amounts up to the permitted maximum eco- 
nomic development project limitation. An ex- 
ample of this situation would be when a citv 
applies for a grant to build a water tank for a 
prospective employer and a county applies for a 
.grant to build a natural gas line for the same 
employer. F'ach grant could be in amounts up 
to project limits but it should be noted that such 



a project must have sufficient beneficial impact 
to justify the total commitment of funds. 

(c) "Sufficient beneficial impact" will be meas- 
ured bv: 

(1) iobs created or retained, especially for low 
and moderate income people; 

(2) revenues for units of government; and 

(3) solutions to local economic program de- 
velopment needs and problems. The rel 
ative dollar demands of pending projects 
will be compared to community benefits 
and community hardships or distress 
when worthy applications exceed fund 
availability. 

Authority G.S. I43B-431; 42 U.S.C.A. 5301; 24 
C.F.R. 570. 4S9. 

.0105 PROJECTS NOT TO BE CONSIDERED 
FOR FUNDING 

(a) The Department and HI "D have sustained 
considerable difficulty interpreting the federal re- 
quirement that a particular project would not be 
completed but for the fact that the requested 
grant would be made. After June 3D. 1992. the 
Department will apply the same interpretation 
of thus provision that has been used in the In- 
dustrial Revenue Bond program since 1976 and 

Renovation 



the Indust rial 
since 1988. 



Building 



program 



This Rule is that after an operator 



or beneficiary becomes economically committed 



to a project, it will not be eligible for funding and 
the unit of government will not be eligible to re- 
quest anv funding assistance to serve that project 
with utilities. "Fconomic commitment" is not a 
quantitative measure, but those types of prohib- 
ited situations would include the following: 
( 1) when construction contracts have been 



signed; 

(2) when equipment purchase orders for site 
specific installations have been issued; 

(3) when true, simple options for the purchase 
of an existing facility are bound with de- 
posits that are so large that the option 
constitutes a sales contract; 

when conditions or contingencies in a 



(41 

ih 

Lin 

ments with a time and method of transition, any 
project which has been reviewed in a pre- 
application conference and has been the subject 
of a favorable Fetter of Encouragement will be 



contract of sale have all been met; and 
when public announcements include no 
expression of the need for CDBG partic- 
ipation. As provided in a later section, a 
unit of government may request a letter 
of non-prejudice to solve this problem. 
In order to provi de local units of govern- 



S04 



:S SORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



grandfathered as to eligibility until December 31, 
1992. 

Authority G.S. 143B-431; 42 U.S.C.A. 5301; 24 
C.F.R. 570.489. 

SECTION .0200 - APPLICATION PROCEDLRE 

.0201 GENERALLY 

This Section provides the application proce- 
dures which shall be followed bv applicants be- 
fore the Secretary will make a final decision 
relative to project approval. The Secretary may- 
request additional facts, details and informed or 
expert opinions on facts or conditions described 
in the application. Narratives and statements of 
fact will be attested as true and accurate by 
elected officials or bv a company official or offi- 
cial objectives designees. 

Authority G.S. 143B-431; 42 U.S.C.A. 5301; 24 
C.F.R. 570.489. 

.0202 PRE-APPLICATION CONFERENCE 

(a) Local units of government are encouraged 
to advise the Department when thev enter into 
serious consideration of an economic develop- 
ment project which may lead to an application. 
The Department will assist the community as 
requested within the limits of available resources. 
Documentation, liaison and coordination will be 
effected by the Department through the Com- 
merce finance Center. Available services in- 
clude: 



(1) forms and documents relating to the ap- 



plication process 
ments. 



with informative com- 



of projects con- 
summated bv other authorities. 



(2) comment on the tyi 

(3) examination of. and comment on. assem- 
bled facts and data which might be used 
in the preparation of application, and 

(4) analysis of approach to likely or potential 
procedural or environmental problems. 

(b) At least one week prior to submission to 
the Department of a project application, the unit 
of .government shall arrange tor a pre-application 
conference with the Commerce finance Center. 
Parties whose presence are required at fhe pre- 
application conference shall include a member 
of the elected governing board for the unit of 
government . or an authorized designee and a 
corporate official, or authorized designee, from 
the employer or beneficiary. In addition, invitees 
to the pre-application conference must include 
the Community Assistance Division, the Divi- 
sion of Environmental Management, the 



gional Official from the Busine: 



Re- 

Industrv 



Division, the Environmental Specialist in the 
Business Industry Division and the Local Gov- 
ernment Commission. 

(c) The purpose of the conference is to ensure 
that the application procedures are clearly un- 
derstood so that the application, when accepted, 
will be complete, thereby shortening the applica- 
tion period as much as possible. 

(d) The operator shall offer written project de- 
scriptions whenever possible and will be encour- 
aged to provide data relative to the character and 
volume of process wastes, water and air dis- 
charges of pollutants, as well as any comment or 
permits already received from the Division of 
Environmental Management. 

(e) The applicant will provide documentation 
of the first federally required program public 
hearing if such a public hearing has been held 
within the provisional 12 months. 

(f) Another purpose of this conference will be 
to reach an understanding among all parties that 
the project is of the type that may be considered 
for approval and funding by the Secretary'. The 
Department will not make decisions, however 
tentative, prior to a full consideration of the 
completed application. 1 lowever, the Commerce 
finance Center may issue a letter of Encour- 
agement or a I cttcr of Concerns if so requested 
bv the unit of government. 1 his letter will con- 
vey comments pertinent to the project and the 
preparation of the application and will enumerate 
any points of concern which are developed as a 
result of the information made available at the 
conference. These points of concern will be 
enumerated so that the applicant's response may 
include pertinent facts and data. The issuance 
of a letter of encouragement will not preclude the 
Secretary or the Commerce finance Center from 
raising new questions or areas of concern after 
an application is received. 

Authority G.S. I43B-431; 24 C.F.R. 5 7 0.4S9; 24 
C.F.R. 570.496. 

.0203 APPLICATIONS 

Each applicant that proceeds with a formal ap- 
plication is expected to take the following steps: 

( 1 ) It is suggested but not required that the 
applicant employ or designate an application 
preparer and service provider for its applica- 
tion. If applicable, federal procurement 
guidelines will be followed. Documentation 
of compliance or non-applicability will be 
provided to the Commerce finance Center. 

(2) I he applicant is encouraged to proceed 
with three critical areas of the application as 
follows: 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



805 



PROPOSED RULES 



(a) the environmental assessment, or the state 



clearing house, 



the determination of Davis- Bacon appli- 
cability and the pertinent wage decision, 
and 
(c) the second project specific public hearing. 
(3) Based on the satisfactory" completion of the 
three critical elements in Paragraph (2) of 
this Rule, the unit may request a letter of 
"Non-Prejudice". In that letter, the De- 
partment may state that the unit of govern- 
ment and or the potential employer may 
begin to make commitments and expendi- 
tures on the proiect without causing the 
Department to prejudice its consideration 
of project approval and project funding he- 
cause of such expenditures. This letter is 
not to be construed as project approval, an 
indication of approval or any priority in the 
allocation of funds. The letter will convey 
the critical understanding that anv money so 
spent is spent at the risk of the unit or the 
beneficiary employer, and that the Depart- 
ment accepts no real, moral or implied h^ 
ability for such spending funds, or for losses 
sustained because funds were so expended. 
(4 1 All applications for CDBG funds, irrespec- 
tive of the Federal threshold of two hundred 
thousand dollars ($200.000). will include a 
disclosure report. Such report, in addition 
to requesting identifying information and the 
amount of funds requested, will disclose 
whether or not, and the extent, to which in- 
terested parties have a financial interest in 
the application. Interested parties include 
developers, contractors, consultants, indi- 
viduals, entities including units of govern- 
ment with a financial interest greater than 
fifty thousand dollars ($50.1)01)) or UJ per- 
cent of the assistance requested, whichever 
is lower. Additionally, the report will show 
anv sources and uses of funds for the project 
which are not identified in the application's 
sources and used of funds statement. 

(5) The unit of government will complete its 
application on forms developed by the De- 
partment and made available by the Com- 
merce Finance Center. 

(6) Anv application which has incomplete fac- 
tual data or laiks Milticient detail w ill be re- 
turned to the unit with specific reasons tor 
the return being stated in writing. Upon 
receipt of the requested information a proc- 
essing number will be assigned and consid- 



eration completed. It will be the goal of the 
Commerce Finance Center to complete 
consideration of approval and funding 
within 45 days. 



Authority G.S. I43B-431; 42 U.S.C.A. 5301; 2 
C.F.R. 570.489. 

.0204 DISCRETIONARY PUBLIC HEARING 
BY THE DEPARTMENT 

(a) Where the project has caused significan 



adverse public reaction as determined from th 
responses to the public notice or the public 



hearing held by the elected board of the Unit o 
Government, or where the facts are unclear ant 
do not support clear findings, the Secretary ma' 
hold a public hearing on the proposed project fo 



the purpose of obtaining additional views of the 
community to be affected. The community i: 
hereby defined as the county in which the projec 
is to be located, 
(b) Public notice shall be given at least sever 



days prior to the hearing. The notice shall spec 



ify the date, time, place and subject matter of the 
hearing 
(c) A complete transcript of the hearing shal 



be prepared by the Secretary and made a part ol 
the application. 

Authority G.S. J43B-43J; 42 U.S.C.A. 5304. 

.0205 FORMAL APPLICATION PROCEDURES: 
APPROVAL 

(a) Where the Secretary makes all the findings 
necessary thev will be made in writing at the 
earliest possible date according to the procedures 



set forth in Paragraph (b) of this Rule 

(b) The Secretary will prepare a Fetter of Ap- 
proval and Grant Offer in which all findings are 
set forth and all grant conditions are set out. 

(c) Notice of project approval and funding will 
be published in a newspaper having general cir- 
culation in the project area. The notice may be 
arranged by either the Unit of Government, the 
Fmplover. or the Department and will describe 
the ]obs created or retained and denote a contact 
for employment applications. 

Authority G.S. 143B-431; 42 U.S.C.A. 5301. 

.0206 FORMAL APPLICATION PROCEDURES: 
DENIAL 

(a) Where there is significant unresolved public 
controversy or where the Secretary is unable to 
make one or more required findings, the Secre- 
tary will specifically indicate in writing the rea- 
sons for denial. 

(b) The Secretary shall indicate in writing that 
the unit of government is invited to prepare a 
presentation, either written or oral which speaks 
factually to the unresolved issues. The Secretary' 



or designee will be present at the meeting to hear 
and discuss the issues with the unit of govern- 



806 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



ment. It will be the responsibility of the unit of 
government to persuade the Secretary that all the 
necessary findings should be made. 

(c) Where the unit of government does ac- 
complish its responsibility to persuade the Secre- 
tary, further procedures shall be as in Rule .0205 
of thus Section. 

(d) Where the unit of government does not 
accomplish its responsibility to persuade the 
Secretary, the Secretary shall notify the unit of 
government the decision in writing, again speci- 
fying the reasons for denial. 

Authority G.S. 143B-431; 42 U.S.C.A. 5301; 24 
C.F.R. 570.4S9. 

.0207 REIMBURSEMENT OF 

EXTRAORDINARY EXPENSE 

Where the Department finds it necessary to 
incur "'extraordinary" expense pertinent to the 
consideration or approval of a unit of govern- 
ment or its proposed lessee, the expenditure will 
not be made or committed except as agreed to 
by the unit of govertunent. Such expenditures 
will be confined to those costs to be incurred 
relative to a particular application, such as the 
out-of-pocket costs relative to travel trips made 
bv the Secretary, or a designee, or the cost of 
advertising the approval and funding of a project. 

Authority G.S. 143B-43I; 24 C.F.R. 570.489. 

SECTION .0300 - FINDINGS REQUIRED FOR 
APPROVAL 

.0301 GENERAL 

(a) In order to approve a project it is necessary 
for the Secretary' to find that: 

(1) the project will have a measurable benefi- 
cial and desirable impact on the commu- 
nity, 

(2) that the funding for the project is appro- 
priate under state and federal guidelines 
tor the Community Development Block 
Grant programs. 

(b) It is the purpose of this Section to specify 
the standards and criteria to be used in making 
those findings. 

Authority G.S. 143B-431; 42 U.S.C.A. 5301; 24 
C.F.R. 570.4S9. 

.0302 CRITERIA FOR MAKING NECESSARY 
FINDINGS 

The Department will use certain criteria for 
making the approval findings, as follows: 
(1) It must be determined that the operator is 

capable of operating the project in a suc- 

cessful manner. 



(2) that the project is identifiable and separable 
with its own measurable and significant ly 
beneficial impact, 

(3) that the project will be completed, 

(4) that there is a substantial benefit to persons 
of low and moderate income, or to ncigh- 
borhoods when census tracks or surveys 



document numbers 
income residents, 



low and moderate 



(5) that there is a favorable and strong ratio or 
relationship between the jobs created and 
the number of CDBG dollars invested in the 
project, 

(6) that there is a favorable and strong ratio or 
relationship between the total dollars in- 
vested m the project, the amount of C'DIKi 
monev invested, and the measured or re- 
tained Ad Valorem tax income or other re- 
venues to either or both city and county 
having taxing authority and jurisdiction, 

(7) that there is a favorable and strong re- 
lationship between the number of jobs saved 
or created and the unemployment situation 
in the unit or units of government impacted, 

(S) that the necessary extent of compliance 
with federal and state guidelines and legal 
requirements has been documented, and, 

(9) if the project is simi lar to the retail or ser- 
vice establishments c 



ibed 



the 1987 



North Carolina General Assembly Resol 



ution, the Secretary will state the basis for 
the approval in the face of those concerns 
expressed. The criteria or tests of this Rule 
will be applied as follows: 
(a) In Subparagraph ( 1 ) of this Rule, capable 
will mean that there is a business history, 
a financial condition, or other outstanding 
business qualifications w hich support the 
conclusion that the entity operating the 
project is capable of operating it in a suc- 
cessful manner, 
(h) In Subparagraph (2) of this Rule, iden- 
tifiable and separable will mean a project 
which can literally be separated out and 
specifically identified and determined as 
the project being discussed, and as such 
will have its own measurable and signif- 



l£l 



(di 



icantlv beneficial impact, 

In Subparagraph (3) of this Rule, the 
provision of legally binding commitments 
from the grantee and the beneficiary em- 
ployer or employers will be sufficient evi- 
dence that the project is to be completed, 

In Subparagraph (4) of this Rule, sub- 
stantial benefit to persons of low and 
moderate income may be evidenced by 
employer commitments to assure that 60 
percent and no less than 51 percent of 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



807 



PROPOSED RULES 



jobs created or saved will he held by per- 
sons of low and moderate incomes; bene- 
low 



fits to low and 
neighborhoods can 



moderate income 
be evidenced bv 



.0401 GRANT AGREEMENT 

When the Secretary formally approves the 
proiect. an offer of the grant agreement and al 
modifications will accompany and be attached tc 



unanimous actions of the elected board 

of those units of government having uj_- iM communication of proiect approval. Wher 

nsdiction, 



lei 



In Subparagraph (5) of this Rule, favora- 
ble and strong will mean that a project 
will create or retain iobs at a rate equal to 
a ratio of one or more jobs per five thou- 
sand dollars ($5.01)0) of CDBG money, 
or. at a rate equal to a ratio of one or 
more jobs per fifteen thousand dollars 
($15,000) of CDBG monev when either, 
the unit of government matches CDBG 
monev at a rate of one local tax dollar for 
eat 



the grant agreement is received bv the unit oj 
government, it will be signed and returned to tht 
Department for the Secretary's signature. When 



signed by all parties, it will be deemed to be ef- 
fective. 

Authority G.S. 143B-43J ; 24 C.F.R. 570.489. 

.0402 METHOD OF PAYMENT 

Recipients will receive pawncnts based on req- 
uisitions submitted and approval bv the Depart 



h three CDBG dollars, or, when the ment. F.xcept for the closing requisition, all such 



project is a manufacturing plant or an in- 
dustrial processing lacihty, 



[fj_ In Subparagraph [6] of this Rule, favorable more than three days. 



requests ^h.tll be tor at least li'.e thousand dollars 
($5.(100). No funds will be kept on deposit for 



(g) 



and strong will mean that a project will 
create or retain revenue such as Ad 
Valorem tax revenue or direct sales taxes. 
or other governmental utility operating 
profits that will either: 

(i) in the case of an infrastructure grant, 
equal the cost of the infrastructure grant 
over a period of tune of no less than 12 
years, or 

(ii) in the case of a loan project, that will 
equal the maximum loss expected in such 
projects [a sum equal to 25 percent of the 
CDBG funds invested) in a period of time 
oi no less than 12 years. 
In Subparagraph (Jj of this Rule, favora- 
ble and strong will mean that the pool of 
available labor in both the unemployed 
work force, unemployed people not con- 
sidered as part of the active work force. 



Authority G.S. I43B-43I; 
U.S.C.A. 5304(g). 



24 C.F.R. 570.489; 41 



.0403 METHOD OF ADMINISTRATION 

I nits of government may contract with au- 
thorized entities certain responsibilities affecting 



and underemployed w ork force in the 
county is at least three times as large as 
the number of jobs created. 



(h) 



ill 



|n Subparagraph (S) of this Rule, the ex- 
tent of documentation required will be 
that as lOiiskiereii as reasonable b\ a pru- 
dent person. 

In Subparagraph (9) of this Rule, the Sec- 
retary will consider evidence that similar 
businesses in the 15-25 mile labor work 
force area support the project and that the 
project will not jeopardize the jobs in 
their businesses. 



Authority G.S. I43B-43I; 42 U.S.C.A. 530/; 24 
C.F.R. 570.489. 

SECTION .0400 - GRANT ADMINISTRATION 



Economic Development projects and monitoring 
the compliance of beneficiaries with grant condi- 
tions. Such a delegation bv contract will not 
absolve the unit from its responsibilities for 
compliance with state and federal guidelines or 
grant agreements. 

Authority G.S. I43B-431; 24 C.F.R. 570.494. 

.0404 MONITORING AND GRANT CLOSE 
OCT 

The Commerce Finance Center will provide 
copies of the lorms and documents needed to 
fulfill grant requirements in an annual perform- 
ance report and in a final grant close out audit. 
I ocation visits and conferences with benefiting 



employers will be conducted bv the Commerce 
Finance Center and the regional offices ol the 
Business and Industry Division. Whenever pos- 
sible the visits will be made with the support and 
presence of the local economic development 
representative and both visits will be combined 
into one session whenever possible. 

Authority G.S. 145B-43I; 24 C.F.R. 570.489. 

.0405 ADMINISTRATIVE HEARINGS 

(a) Recipients mav contest departmental 
actions with respect to this Subchapter under the 
Contested Case Hearing Procedures set torth in 



SOS 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



OS. J50B and 26 NCAC 3 - Office of Adminis- 
trative Hearings, Hearings Division. 
(b) The Department may also commence con- 



tested case hearing procedures against recipients 
pursuant to G.S. I50B and 26 NCAC 3 - Office 
of Administrative Hearings, I iearings Division. 

Statutory Authority G.S. 143B-431. 

TITLE 10 - DEPARTMENT OF HUMAN 
RESOURCES 



iV otice is hereby given. in accordance with G.S. 
150B-2I.2 that the Commission for Mental 
Health, Developmental Disabilities and Substance 
Abuse Services intends to amend rule(s) cited as 
10 NCAC 14K .0216; 15 A .0205 - .0206, .0210 - 
.0218, .0220, .0223, .0226 - .0228; I8D .0117, 
.0119; and adopt rule(s) cited as 10 NCAC I4T 
.0101 - .0104; 18D .0127. 

1 he proposed effective date of this action is No- 
vember 1, 1992. 

1 he public hearing will be conducted at 1:00 
p.m. on August 27, 1992 at the Edgecombe- Nash 
area MH/DD/SA Program, Medical Arts Mall, 
Class Room, 500 Nash Street, Rocky Mt., N.C. 
27804. 

J\easons for Proposed A clions: 

10 NCAC UK .0216 - G.S. 150B, the Administra- 
tive Procedure Act, now requires that specific cri- 
teria be used in determining whether to waive a 
rule. This Rule is proposed for amendment to be 
consistent with that requirement. 

10 NCAC 14T .0101 - .0104 - The above-referenced 
rules are proposed for adoption to set forth the 
Division's policy on the implementation of the 
Natural Death Act and clients' rights relative to 
making advance care directives. The rules are 
based on: 

(1) the passage of HB 821 by the 1991 General 
Assembly, An Act to Establish an Additional 
Method for an Individual to Designate an 
Attorney-in-Fact to Make Health Care De- 
cisions and to Amend the Natural Death Act; 

(2) the need to implement the Patient Self- 
Determination Act under the federal 
Omnibus Budget Reconciliation Act of 1990, 
(for hospitals and nursing facilities ) ; and 

(3) the desire for uniformity across the Divi- 
sion's State facilities in an area of client 
rights that is becoming increasingly complex. 



10 NCAC I5A .0205 - .0206, .0210 - .0218, .0220, 
.0223, .0226 - .0228 - These Rules are proposed for 
amendment to become more consistent with 
standard practice and to provide for hospitals and 
area programs a clearer understanding of their 
roles in carrying out voluntary admissions, invol- 
untary commitments and discharges of minors, to 
and from Stale facilities, who need mental health 



10 NCAC I8D .0117, .0119, .0127 - New 

confidentiality laws were adopted by the 1991 
General Assembly which define when and how 
families can obtain specified information about the 
treatment of a mentally ill relative; This law 
mandates the Commission for Mental Health, 
Developmental Disabilities and Substance Abuse 
Services to adopt rules defining "legitimate role in 
the therapeutic services offered"; This role refers 
to the relationship of the family member and the 
mentally ill relative. The amendment and 
adoption of rules specified are necessary in order 
to comply with this new confidentiality law. 

10 NCAC I8D .01 17 - Need to expand the Scope 
of the current rules so that specific rules will be 
applicable to both public and private facilities. 

10 NCAC I8D .01 19 - Need to add a definition for 
"Legitimate role in the therapeutic senices of- 
fered. " 

10 NCAC 18D .0127 - Need to add an additional 
rule to provide proper reference to new statutes. 



Cc 



omment Procedures: Any interested person 
may present his comments by oral presentation or 
by submitting a written statement. Written com- 
ments must be sent to the above address by A ugust 
16, 1992 and must state the rules to which the 
comments are addressed. Persons wishing to 
make oral presentations should contact Charlotte 
Tucker, Division of Mental Health, Developmental 
Disabilities and Substance Abuse Services, 325 
N. Salisbury Street in Raleigh. N.C. 27603, (919) 
733-4774 before August 16. 1992. Time limits for 
oral remarks may be imposed by the Commission 
Chairman. Fiscal information on these Rules is 
also available from the same address. 

CHAPTER 14 - MENTAL HEALTH: GENERAL 

SUBCHAPTER 14K - CORE LICENSURE RULES 

FOR MENTAL HEALTH: MENTAL 

RETARDATION AND OTHER 

DEVELOPMENTAL DISABILITIES: AND 

SUBSTANCE ABUSE FACILITIES 

SECTION .0200 - LICENSURE 



7:S NORTH CAROLINA REGISTER July 15, 1992 



809 



PROPOSED RULES 



.0216 WAIVER OF LICENSURE RULES 

(a) The Director of DFS may waive any 
licensure rule contained in 10 NCAC 14K 
through 140 provided the issuance of the waiver 
is for good cause and will not affect the health, 
safety or welfare of individuals within the facility. 

(b) Requests for waivers shall be sent to the 
Director of DFS, 701 Barbour Drive, Raleigh, 
North Carolina 27603. 

(c) The request shall be in writing and shall 
contain: 

the name, address and telephone number 
of the requester; 

the name, address and telephone number 
of the facility for which the waiver is re- 
quested; 

the rule number and title of the rule or 
requirements for which waiver is being 
sought; 

a statement of facts nooouoitating the re- 
quest with supporting documents a* ap- 
propriate; a«4 showing: 
(A) reason for, and the nature and extent 



(1) 
(2) 

(3) 

(4) 



be in writing and shall be filed within 60 days o 
receipt of the decision regarding the waiver re 
quest. 

(h) fg} Waivers shall not exceed the expiratioi 
date of the current license and shall be subject tc 
renewal consideration upon the request of the 
licensee. 

Statutory Authority G.S. 122C-23(f) 
122C-26(4); 122C-27(9); 143B-147. 

SUBCHAPTER 14T - ADVANCE CARE 
DIRECTIVES FOR CLIENTS 

SECTION .0100 - RIGHT TO NATURAL DEATH 

.0101 SCOPE 

These Rules set forth the policy of the Division 
of Mental Health. Developmenta l Disabilities 



and Substance Abuse Services regarding the fun- 
damental right of individuals to control decisions 



relating to his or her medical care, including the 
right to a peaceful and natural death, as set forth 
in G.S. 40-321. These Rules apply to the Divi 



sion's four psychiatric hospitals, the N.C. Special 



of, the request; and __ , : , . 

(13) that the health, safety or welfare of clT Care Center, the three Alcohol and Drug Ahuse 



ents will not be threatened; 



(5) 



documentation of area board approval, if 
and when requests are from area programs 
and contract agencies of area programs, 
or documentation of governing body ap- 
proval when requests are from private fa- 
culties not contracting with area 
programs. 

Prior to issuing a decision on the waiver 
request, the Director of DFS shall consult with 
the Director of DMH/MR/SAS; and may also 
request additional information or consult with 
additional parties as appropriate. 

(e) A decision regarding the waiver shall be 
based upon, but not limited to, the following: 



Treatment Centers, and the live Mental Retar 



dation (renters, hereafter referred to as Division 
facilities. 



(d) 



Statutory Authority G.S. 32A-15; 90-320 
1 43 B- 1 47. 

.0102 DEFINITIONS 

(a) The definitions contained in this Rule, and 



the terms defined in G.S. 40-321 shall apply to 
the Riles in this Subchapter, 
(b) As used in these Rules, the following terms 



( 1 ) the nature and extent of the request: and 
(2) safeguards to ensure that the health, safety 
or weltare o\_ clients will not be threatened. 

(f) fe} A decision regarding the waiver request 
shall be issued in writing by the Director of DFS 
and shall state the reasons why the request was 
granted or denied and any special conditions re- 
lating to the request. A copy of the decision shall 
be sent to the Director of DMH MR/SAS. If 
the rule in question was adopted bv the Com- 
mission, the Director of DMH MR SAS shah 
send a copy of the decision to all commission 
members. 

(g) ($ The decision of the Director of DFS re- 
garding a waiver request may be appealed to the 
Commission through the contested case process 
set out in 10 NCAC 1413 .0300. The appeal shall 



have the meanings specified: 

( 1 ) "Advance care directive" means any indi- 
cation made in writing bv a client in 
which the client makes provision or di- 
rections as to who will make health care 
decisions should the client become inca- 



pable of doing so; whether m such cases 
extraordinary means of sustaining life 
should be employed: or both. 
(2) 'Capable client" means a client who has 
the ability to make and communicate 



health care decisions, as confirmed bv the 
client's attending physician. 
(3) "Division" means the term as defined in 
G.S. \22C^. 



Statutory Authority G.S. 32A-/5; 32A-I6; 
90-320; '90-32 1; I43B-147. 

.010.3 ADVANCE CAKE DIRECTIVES 



S10 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



The Division shall honor advance care directives 
made by clients prior to admission or made by 
capable clients after admission. Division facilities 
shall decline to honor any advance care directive 
which . does not conform with the forms set forth 
by_ G.S. 32A-25 (for a health care power of at- 
torney) or G.S. 90-321 (for a living will). 

Statutory Authority G.S. 32A-/5; 90-320; 90-321; 
90-322; 143B-147. 

.0104 NATURAL DEATH IN ABSENCE OF 
DIRECTIVE 

Clients in division facilities retain the right to 
die with dignity even where they have made no 
advance care directive, or have made a directive 
which does not comply with statutory forms. In 
the absence of an advance care directive, the Di- 
vision shall maintain strict compliance with the 
procedure established by G.S. 9U-322 for deter- 
mination of when, and under what conditions, 
extraordinary means or artificial nutrition or hv- 
dration may be withheld or withdrawn. 



Statutory Authority G.S. 
143B-147. 



90-320; 90-322; 



CHAPTER 15 - MENTAL HEALTH HOSPITALS 

SUBCHAPTER ISA - GENERAL RULES FOR 
HOSPITALS 

SECTION .0200 - VOLUNTARY ADMISSIONS, 

INVOLUNTARY COMMITMENTS AND 

DISCHARGES OF MINORS TO AND FROM 

REGIONAL PSYCHIATRIC HOSPITALS 

.0205 SCOPE 

The rules tft this Section shall be followed with 
regard to minors by hospital *h4 »fea program 
staffs, a«4 other appropriate professionals as 
specified i» G.S. 122C 222. For voluntary ad- 
mission, involuntary commitment and discharge 
of minors to regional psychiatric hospitals, the 
rules in this Section shall be followed by hospital 
staff, area program staff, and other appropriate 
professionals as specified in G.S. 122C-222. Area 
program child and youth coordinators and hos- 
pital child and youth unit directors shall develop 
their policies and procedures regarding inpatient 
referrals and discharge planning in accordance 
with these Rules. These Rules do not apply to 
Wright School, Whitakcr School or the Q*&- 
dron's Psychiatric t-ftit- at- John I instead Ilospi 
tat Butner Adolescent Treatment Center 
(BATC). 



Statutory Authority G.S. I22C-221 through 
122C-223; 122C-224.7; 122C-261; 122C-262; 
143B-147. 

.0206 DEFINITIONS 

For the purpose of the rules in this Section, the 
following terms shall have the meanings indi- 
cated: 

(1) "Child and youth coordinator" means that 
individual charged by the area program to 
develop and administer mental health ser- 
vices for minors. 

(2) "Child and youth unit director" means that 
individual charged by the a regional psychi- 
atric hospital to develop and administer 
mental health services for minors within the 
hospital. 

(3) "Eligible psychologist" means a licensed 
practicing psychologist who has at least two 
years' clinical experience. 

(4) "Emergency involuntary commitment" 
means admission to a hospital when a minor 
has met the criteria specified in G.S. 
122C-262. 

(5) "Hospital" means one of the regional psy- 
chiatric hospitals of the Division. Wright 
School, Whitakcr School and the Children's 
Psychiatric Unit at- John I mstead Butner 
Adolescent Treatment Center are excluded 
from this definition. 

(6) "Involuntary commitment" means the 
process of admission to a hospital as set 
forth in G.S. 122C. Article X Parts L 6 and 
7. 

(7) (6) "Legally responsible person" has the 
meaning specified » G.S. 122C 3(21)). 
means the same as defined in G.S. 122C-3. 

(8) {p-f "Referring agent" means the practitioner 
authorized to refer minor clients to a hospi- 
tal. In a single portal areas area this is 
means the chdd and youth coordinator or 
his designee. In a non-single portal areas, 
area, this is means the child and youth co- 
ordinator or his designee, a licensed physi- 
cian or an eligible psychologist. 

(&) "Regional child »h4 family coordinator" 
means the individual Wi each regional office 
who coordinates t&e development ef- mental 
h e alth services fof minors. 

(9) "Regional screening committee" means the 
regional committee that reviews the records 
of minors for the purpose of making place- 
ment recommendations to Wright School, 
Whitaker School, and the Childr e n's Psy 
chiiitric I "nit at- John I "mstead Hospital. 
Butner Adolescent Treatment Center. The 
Committee also reviews records of hard to 
place minors upon request by area programs 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



Sll 



PROPOSED RULES 



for the purpose of consultation and facili- 
tation. 

(10) "Single portal area" hr» tlw moaning 
cpocifiL ' d » &Sr 122C 3(35). means the 
vime j2 J.'lincd in ( i S 1 22( '- V 

(11) "Voluntary admission" means admission 
to a hospital for evaluation and treatment 
co n. ' i ' n t i » d k> bv with the consent of the mi- 
nor's legally responsible person, or self ad- 
mission in accordance with G.S. 122C-223. 

(12) "Willie M. coordinator" means that indi- 
vidual charged by the area program to de- 
velop and administ e r oversee mental health 
services for Willie M. class members. 

Statutory Authority G.S. 122C-3; 122C-221; 
143B-147. 

.0210 TELEPHONE NOTIFICATION OF 
HOSPITAL BY REFERRING AGENT 

(a) During working hours, the referring agent 
shall telephone the child and youth unit director 
or his designee regarding an imminent voluntary 
admission or involuntary commitment. 

(b) After working hours, the referring agent 
shall telephone the hospital admission staff re- 
garding an imminent voluntary admission or in- 
voluntary commitment. Immediately upon 
receiving such telephone notification, the hospital 
admissions staff shall notify the desig»ated rep- 
nj - jL'ntativL ' designee of the child and youth unit 
director. 

Statutory Authority G.S. 122C-22I; 122C-222; 
122C-261; I43B-147. 

.02 I 1 REFERRALS FROM A SINGLE 
PORTAL AREA 

(a) In a single portal cin'us, area, the child and 
youth coordinator or his designee may refer a 
minor directly to a hospital. 

(b) In a single portal areas, area, all profes- 
sionals and agencies shall refer all prospective 
minor voluntary admissions and involuntary 
commitments to the child and youth coordinator 
or his designee. 

(c) Except as provided in G.S. 122C-223 and 
122C-262, referrals not made in accordance with 
this Rule shall be directed by hospital staff to the 
child and youth coordmator or his designee as 
specified in this Rule. 

Statutory Authority G.S. 122C-221; 122C-223; 
122C-261; 122C-262; I43B-147. 

.0212 REFERRALS FROM A NON-SINGLE 
PORTAL AREA 

(a) In a non-single portal ar e as, area, licensed 
physicians, eligible psychologists or the child and 



youth coordinator or his designee may refer a 
minor directly to a hospital. 

(b) In a non-single portal areas, area, all pro- 
fessionals and agencies other than licensed phy- 
sicians and eligible psychologists shall refer all 
prospective minor voluntary admissions and in- 
voluntary commitments to the persons listed in 
Paragraph (a) of tins Rule. 

(c) Except as provided in G.S. 122C-223 and 
122C-262, referrals not made in accordance with 
this Rule shall be directed by hospital staff to the 
appropriate persons or agencies as specified in 
this Rule. 

Statutory Authority G.S. 122C-222; 122C-223; 
122C-261; I22C-262; 143B-147. 

.0213 USE OF STANDARDIZED REFERRAL 
FORM 

.All referrals shall be in writing on the standard- 
ized referral form, which is a\ ailable throudi the 
area mental health pro 'jam, in duplicate. One 
copy of the form shall be filed at the area pro- 
gram and one copy shall be sent to the hospital. 

Statutory Authority G.S. 122C-22I; 122C-222; 
122C-261; 143B-147. 

.0214 SCREENING BY REFERRING AGENT 

(a) As part of the referral process for hospital 
admission, except admissions under G.S. 
122C-223 and 122C-262, the appropriate refer- 
ring agent, as specified in Rules .0211(a) and 
.0212(a) » of this Section, shall determine that: 

( 1 ) there is the presence »f probable prusunco 
of mental illness; and 

(2) less restrictive treatment measures are 
likely to be ineffective. In making this 
judgment, the referring agent shall deter- 
mine that: 

(A) outpatient treatment. day 
hospitalization or treatment, or less in- 
tensive residential treatment measures 
would not alleviate the mental illness: 

(B) there is no local inpatient unit available 
that meets the needs of the minor; and 

(C) the minor s primary need is not foster 
care, group child care or correctional 
placement. 

(b) Additionally, the referring agent shall pro- 
vide the following written information, to the 
extent possible: 

( 1 ) name of the professional at the area pro- 
gram or other setting who has provided 
diagnostic or treatment services to the cli- 
ent; 

(2) full name of client, including maiden 
name, if applicable; 



S12 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



(3) legal county of residence; 

(4) birthdate; 

(5) previous admissions to any state facility; 

(6) name, address and telephone number of 
the legally responsible person or, if there 
is no legally responsible person, the mi- 
nor's next of kin; 

(7) any medical problems, including pertinent 
laboratory data and treatment; 

(8) current psychiatric and other medications; 

(9) history of compliance with medications 
and aftercare instructions; 

(10) alternatives attempted or considered prior 
to referral to hospital; 

(11) goal of hospitalization specifying the 
treatment problems that the hospital 
should address; 

(12) specific suggestions for programming and 
other treatment planning recommen- 
dations; and 

(13) ri'luar . o discharge plans to include the rel- 
evant information relevant to on place- 
ment and other special considerations of 
the client upon discharge from the hospi- 
tal. 

(c) The written information shall accompany 
the minor to the hospital. 

Statutory Authority G.S. 122C-221 through 
I22C-223; 122C-261; 122C-262; 143B-147. 

.0215 WRITTEN AGREEMENTS FOR A 
NON-SINGLE PORTAL AREA 

(a) In a non-single portal area, when a licensed 
physician or eligible psychologist who is not af- 
filiated with the area program makes a referral of 
a minor for hospital admission, he shall be asked 
by the hospital t*»i4- to sign a written agreement 
which promises the following: 

(1) continued involvement with the child and 
family during hospital treatment; 

(2) participation in identification and coordi- 
nation of community services that are es- 
sential to discharge planning; and 

(3) provision of aftercare, as needed, following 
discharge. 

(b) The purpose of this written agreement is to 
assure that appropriate planning for treatment, 
discharge and aftercare will occur. 

(c) If the referring agent does not sign the 
agreement described in Paragraph (a) of this 
Rule, the hospital staff shall consult with the 
minor's legally responsible person to determine 
his choice of a practitioner to participate in dis- 
charge and aftercare planning. The designated 
person shall thereafter be called the referring 
agent. 



(1) If the legally responsible person names a 
practitioner, the hospital staff shall obtain 
the legally responsible person's written 
consent to contact the practitioner chosen 
in order to request the practitioner's par- 
ticipation in discharge and aftercare plan- 
ning. 

(2) If the legally responsible person does not 
know of a practitioner, the hospital staff 
shall suggest the child and youth coordi- 
nator in the area program in the 
catchment area where the minor resides. 
The hospital staff shall obtain the legally 
responsible person's written consent to 
contact the child and youth coordinator 
and shall request the child and youth co- 
ordinator's participation in discharge and 
aftercare planning. 

(3) If the legally responsible person does not 
know of a practitioner and declines to 
choose the child and youth coordinator, 
the hospital staff may suggest other prac- 
titioners. If the legally responsible person 
selects a practitioner other than the child 
and youth coordinator, the hospital staff 
shall proceed as described in Subpara- 
graph (c)(1) of this Rule. 

(4) If the legally responsible person refuses to 
permit the involvement of any practitioner 
in discharge and aftercare planning or re- 
fuses to sign the written consent described 
in Subparagraph (c)(1) or (c)(2) of this 
Rule, and in the opinion of the responsi- 
ble professional, such refusal would be 
detrimental to the minor, the responsible 
professional shall so state in writing, and 
thereafter, the hospital staff shall so advise 
the child and youth coordinator in the 
area program in the catchment area where 
the minor resides. 

Statutory Authority G.S. 122C-222; I22C-26I; 
143B-147. 

.0216 INFORMATION FOR TREATMENT 
PLANNING 

(a) When in accordance with G.S. 122C-53 
through 122C-56, the 44*e referring agent shall 
send the following client information, if available, 
to the appropriate hospital admissions office 
within three working days following the minor's 
voluntary admission or involuntary commitment 
to the hospital. This information shall include 
but not be limited to the following: 

(1) family history, current composition, cur- 
rent functioning, and motivation tor 
treatment; 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



813 



PROPOSED RULES 



(2) child or youth's developmental history', 
highest level of functioning in the past, 
and current level of functioning; 

(3) relationship with family, peers and others; 

(4) personality characteristics and degree of 
emotional or organic impairment; 

(5) how, and, under what circumstances, the 
impairment is most manifest; 

(6) intellectual level, past and current; 

(7) educational-academic functioning, and 
school history; 

(8) strengths, individual and family; 

(9) long range planning; and 
(10) goals for hospitalization. 

(b) The information required in Paragraph (a) 
of this Rule shall be used by hospital staff in de- 
veloping the treatment plan. 

Statutory Authority G.S. I22C-55(a); I43B-/4 V . 

.0217 NOTIFICATION BY HOSPITAL OF 
ADMISSION/DEM AL 

(a) The child and youth unit director shall no- 
tify the referring agent within 24 hours regarding 
the following: 

( 1 ) the decision to admit the minor and the 
admission date; or 

(2) the decision to deny admission of the mi- 
nor, including the reasons for the denial 
and any recommendations for treatment 
alternatives. 

(b) In thoflo instances whore - when the individ 
»al minor has not been referred by an area pro- 
gram, the hospital shall notify the referring agent 
and the appropriate area program within one 
working day regarding the hospital's decision to 
admit or deny admission to the individual, mi- 
nor. 



Statutory Authority 
I22C-55(a); 143B-147. 



G.S. 122C-53(a); 



.0218 SHARING OF INFORMATION WITH 
REFERRING AGENT 

(a) When in accordance with G.S. 122C-53 
through 122C-56. during During the formulation 
of the minor's treatment plan, the child and 
youth unit director shall share the following in- 
formation with the referring agent: 

( 1) goals for hospitalization; 

(2) anticipated length of stay; 

(3) expectations regarding family involvement; 

(4) expectations regarding area program and 
other community agency involvement; 

(5) dates of hospital diagnostic or treatment 
conference; and 

(6) dates of discharge planning conference. 



The information in Subparagraphs (5) and (6) in 
this Rule shall be provided as early as possible to 
allow for referring agent participation. 

(b) The child and youth unit director shall no- 
tify the referring agent concerning any significant 
changes m the minor's treatment plan. 



Statutory Authority 
!22C-55(a); I43B-147. 



G.S. 122C-53(a), 



.0220 FAILURE OF AREA PROGRAM TO 
PARTICIPATE IN PLANNING 

If the referring agent is the area program, and 
the area program fails to participate in planning 
for the treatment, discharge and aftercare of the 
minor, the child and youth unit director shall 
notify the child and youth coordinator. If ap- 
propriate area program participation does not 
occur after such notification, the child and youth 
unit director shall notify the area director. a«4 
then the regional child a«4 family coordinator. 

Statutory Authority G.S. 122C-221; 143B-147. 

.0223 AREA PROGRAM PROCEDURES/ 
UNSCREENED EMERGENCY 
COMMITMENTS 

(a) In those instances where the minor has not 
been screened by a referring agent prior to emer- 
gency commitment to a hospital, the area pro- 
gram in the catchment area where the minor 
resides shall appoint a ease manager staff person 
for the minor within two working days of receipt 
of notification of the commitment. 

(b) The ease manager staff person shall 
promptly communicate with the child and youth 
unit director or his designee to arrange a com- 
prehensive treatment planning conference. The 
ease manager staff person shall also communicate 
with the hospital child and youth unit director 
or his designee regarding discharge planning. 

Statutory Authority G.S. 122C-262; I '43 B- 147. 

.0226 PARTICIPANTS IN DISCHARGE 
PLANNING 

(a) The hospital shall consult with the referring 
agent to determine who will participate in dis- 
charge planning. 

(b) In those instances where there is no refer- 
ring agent, the ease manager staff person ap- 
pointed pursuant to Rule .0223 of this Section 
shall be consulted to determine who will partic- 
ipate. 

(c) If the hospital does not request the referring 
agent's participation in discharge planning, the 
referring agent shall notify the child and youth 
unit director. 



S14 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



Statutory Authority G.S. I22C-22I; I22C-222; 
I22C-224.7; I43B-147. 

.0227 DISCHARGE PLANNING AND 
WRITTEN PLAN 

(a) A confori'nco siwU fen* h*44 te formulate a 
discharg e plan fof each minor. An interdiscipli- 
nary - meeting shall be held to formulate the dis- 
charge plan for the minor. Thus meeting shall 
include, but need not be limited to, the parent 
or legally responsible person and professionals 
involved in services for the minor. The planning 
shall include, but need not be limited to, the fol- 
lowing: 

(1) a review of the minor's presenting prob- 
lems, social circumstances and relevant 
case history; 

(2) a discussion of follow-up treatment alter- 
natives based on realistic community al- 
ternatives; and 

(3) the assignment of responsibilities for im- 
plementation of the discharge plan. 

(b) A written discharge plan shall be developed 
based on the results of the conference. Copies 
interdisciplinary meeting. When in accordance 
with G.S. I22C-53 through 122C-56. copies of 
the plan shall be distributed to the referring agent 
and other relevant parties within five working 
days. 

Statutory Authority G.S. 122C-221; I22C-222; 
122C-224.7; 143B-I47. 

.0228 DISCHARGE PLAN IMPLEMENTATION 
FOR AREA PROGRAM REFERRALS 

(a) When a minor referred by an area program 
is discharged, the minor's e*«* manager staff per- 
son shall be responsible for supervising the im- 
plementation of the minor's discharge plan. 

(b) The following staff shall be available to as- 
sist the minor's «»e manager staff person in im- 
plementing the minor's discharge plans: 

(1) area program child and youth coordinator; 

(2) child and youth staff; 

(3) other appropriate area program staff; 

(4) area program Willie M. coordinator; and 

(5) regional screening committee. 

Statutory Authority G.S. 122C-22I; I22C-224.7; 
143B-147. 

CHAPTER 18 - MENTAL HEALTH: OTHER 
PROGRAMS 

SUBCHAPTER I8D - CONFIDENTIALITY 
Rl LES 

SECTION .0100 - GENERAL RILES 



.0117 PURPOSE AND SCOPE 

(a) The purpose of the rules in this Subchapter 
is to set forth requirements for those who collect, 
store and disseminate information on individuals 
who are served by ftfea a«4 stat e facilities, as de- 
fined in G.S. 122C-3. The rules shall be used in 
conjunction with the confidentiality requirements 
specified in G.S. 122C-51 through 122C-56. 
Area and state facilities shall comply with all 
rules in this Subchapter; however, facilities, as 
defined iri G.S. 122C-3, shall only comply with 
Rules .011^(7) and .0127 of this Subchapter. 

(b) Area and state facilities governed by these 
Rules include offices of the Division; regional 
psychiatric hospitals, mental retardation centers 
and alcohol and drug abuse treatment centers; 
state special care centers; schools for emotionally 
disturbed children; area programs and their con- 
tract agencies; and other public and private 
agencies, institutions or programs which are op- 
erated by or contract with the Division for Men- 
tal I lealth. Developmental Disabilities or 
Substance Abuse Services. All employees, stu- 
dents, volunteers or other individuals who have 
access to or control over confidential information 
in these facilities or programs shall abide by these 
Rules. However, local hospitals that are accred- 
ited by the Joint Commission on Accreditation 
of Healthcare Organizations (JCAHO) which 
contract with an area facility or provide services 
for a state facility shall be excluded from these 
Rules and the confidentiality policies of that ac- 
credited hospital shall apply. In addition, edu- 
cation records generated by Alcohol and Drug 
Education Traffic Schools (ADETS) and Drug 
Education Schools (DES) are excluded from 
these Rules since the records maintained by such 
schools are considered public records. 

Statutory Authority G.S. 122C-52; 122C-55; 
131E-67; I43B-I47. 

.0119 DEFINITIONS 

(a) The following terms shall have the 
meanings specified in G.S. 122C-3, 122C-4 and 
122C-53: 

( 1) "Area board", 

(2) "Area facility", 

(3) "Confidential information", 

(4) "Guardian", 

(5) "Internal client advocate", 

(6) "Legally responsible person", 

(7) "Next of kin", 

(8) "Provider of support services", 

(9) "Secretary", and 
(10) "State facility". 



7:S NORTH CAROLINA REGISTER July 15, 1992 



815 



PROPOSED RULES 



(b) As used in this Subchapter, unless the 
context clearly requires otherwise, the following 
terms have the meanings specified: 



(h 



(2) 



(3) 



(4) 



(5) 



(6) 



ill 



"Client Record" means any documenta- 
tion made of confidential information. 
For the purpose of the rules in this Sub- 
chapter, this also includes confidential in- 
formation generated on an individual who 
was not admitted but received a service 
from an area or state facility. 

"Clinical Staff Member" means a mental 
health, developmental disabilities or sub- 
stance abuse professional who provides 
active treatment habilitation to a client. 

"Confidential information" as defmed in 
G.S. 122C-3 includes but is not limited to 
photographs, videotapes, audiotapes, cli- 
ent records, reimbursement records, verbal 
information relative to clients served, cli- 
ent information stored in automated files, 
and clinical staff member client files. 

"Delegated Employee" means anyone 
designated by the facility head to carry out 
the responsibilities established by the rules 
in this Subchapter. 

"Disclosure of Information" means the 
dissemination of confidential information 
without consent. 

"Division" means Division of Mental 
Health, Developmental Disabilities and 
Substance Abuse Services. 

"Legitimate role in the therapeutic ser- 
vices offered" means next of kin or other 
family member who, in the )udgcmcnt of 
the responsible professional, as defined in 
G.S. 122C-3, and after considering the 
opinion of the client, currently provides 
or. within the past 12 months preceding 
the current hospitalization, provided sub- 
stantial tune or resources in the care of the 
client regarding residential needs; man- 
agement of finances; procurement, pro- 
vision or preparation of tood and clothing; 
provision of transportation: and guidance 
in obtaining benefits, medical treatment 
and rehabilitation services. 



(8) $3) "Minor Client" means a person under 

1 8 years of age who has not been married 
or who has not been emancipated by a 
decree issued by a court of competent ju- 
risdiction or is not a member of the armed 
forces. 

(9) fr^ "Parent" means the biological or 
adoptive mother or father of a minor. 
Whenever "parents" are legally separated 
or divorced or have never been married, 
the "parent" legally responsible for the 
minor shall be the "parent" granted cus- 



tody or either parent when joint custody 
has been granted. 

(10) f*) "Person Standing in Loco Parentis" 
means one who has put himself in the 
place of a lawful parent by assuming the 
rights and obligations of a parent without 
formal adoption. 

(11) (4% "Release of Information" means the 
dissemination of confidential information 
with consent. 

( 12) (44f "Signature" means signing by affixing 
one's own signature; or by making one's 
mark; or impressing some other sign or 
symbol on the paper by which the signa- 
ture may be identified. 

Statutory Authority G.S. I22C-3; 122C-4; 
122C-52; 122C-55; 13IE-67; I43B-147. 

.0127 INFORMATION PROVIDED TO 
FAMILY/OTHERS 

Information shall be provided to the next of kin 
or other lamilv member, who has a legitimate 



role in the therapeutic services offered, or other 
person designated by the client or his legally re- 
sponsible person in accordance with G.S. 
122C-55(j) through (1). 

Statutory Authority G.S. J22C-52; 122C-55; 
131E-67; 143B-I47. 

kk-k-kkkkkkkkkk-k-kkkk 



lyotice is hereby given in accordance with G.S 
150B-2I.2 that the DHR Division of Medical As- 
sistance intends to adopt rule cited as 10 NCAC 
26B .0122: amend rules cited as 10 NCAC 26B 
.0201, .0206 - .0207; 26H .0601 - .0602, .0605 and 
repeal rides cited as 10 NCAC 26D .0008. 

1 he proposed effective date of this action is Oc- 
tober 1. 1992. 



Ti, 



he public hearing will be conducted at 1:30 
p.m. on July 31 . 1992 at the North Carolina Divi- 
sion of Medical Assistance, 1985 L instead Drive, 
Room 132, Raleigh, N.C. 27603. 



R 



eason for Proposed Action: 



10 NCAC 26B .0122 - Introduction of Medicaid 
"Case Management Services" was initiated by the 
N.C. Division of Social Services and the directors 
of the County Departments of Social Sen ices to 
target the population at-risk for abuse, neglect, or 
exploitation not otherwise served by existing pro- 
grams. 



S16 



~:S SORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



10 NCAC 26B .0201, .0206, and .0207 - Recipients 
are denied access to care and denial providers 
ha\ : e complained of the paperwork delays involved 
with requiring prior approval for routine and nec- 
essary dental care. These changes would allow 
the dental program to be brought up to standard 
with other medical services in regard to primary 
care prior approval requirements. 

10 NCAC 26D .0008 - This denture information is 
listed elsewhere in the NCAC. 

10 NCAC 2611 .0601, .0602, and .0605 - To revise 
the NCAC to conform to the Medicaid State 
Plan. 

(comment Procedures: Written comments con- 
cerning these Rules must be submitted by July 31 , 
1992, to: Division of Medical Assistance, I9S5 
U instead Drive, Raleigh, N.C. 27603, ATTN.: 
Bill Hottel. A PA Coordinator. Oral comments 
may be presented at the hearing. In addition, a 
fiscal impact statement is available upon written 
request from the same address. 

CHAPTER 26 - MEDICAL ASSISTANCE 

SUBCHAPTER 26B - MEDICAL ASSISTANCE 
PROVIDED 

SECTION .0100 - GENERAL 

.0122 CASE MANAGEMENT SERVICES FOR 
ADULTS AND CHILDREN AT-RISK 
FOR ABUSE, NEGLECT, OR 
EXPLOITATION 

(a) Case management is a set of interrelated 
activities under which responsibility for locating, 
coordinating and monitoring appropriate services 
for an individual rests with a specific person or 
organization. The purpose of case management 
services for adults and children at-risk of abuse, 
neglect , or exploitation is to assist them in gain- 
ing access to needed medical, social, educational, 
and other services; to encourage the use of cost- 
effective medical care by referrals to appropriate 
providers; and to discourage over-utilization of 
costly services. Case management services will 
provide necessary coordination with providers of 
non-medical services such as nutrition programs 
like WIC or educational agencies, when services 
provided by these entities are needed to enable 
the individual to benefit from programs for which 
he or she is eligible. The set of interrelated ac- 
tivities are as follows: 

( 1) Evaluation of the client's individual situ- 
ation to determine the extent of or need 



(21 



for initial or continuing case management 
services. 

Needs assessment and reassessment to 
identify the service needs of the client. 



(3) Development and implementation of an 
individualized plan of care to meet the 



service needs of the client. 
(4) Providing assistance to the client in locat- 



ing and referring him or her to providers 
or programs that can meet the service 
needs. 

(5) Coordinating delivery of services when 
multiple providers or programs are in- 
volved in care provision. 

(6) Monitoring and following-up to ensure 
services are received, adequate to meet the 
client's needs, and consistent with good 
quality of care. 

(b) "I "he target group includes Medicaid recipi- 
ents who are assessed as at-risk of abuse, neglect , 
or exploitation as defined in North Carolina 
General Statutes 7A-542 and 108A-9'J. The re- 
cipient cannot be institutionalized nor a recipient 
of other Medicaid-rcimbursed case management 
services provided through the State's home and 
community-based services waivers or the State 
Plan. The recipient must reside in a county 
designated bv the Division of Medical Assistance 
to offer this service. 'I 'he criteria for determining 
whether an adult or child is at-risk of abuse, 



neglect, or exploitation is as follows: 

( 1 ) At- Risk Adult: An at-risk adult is an in- 
dividual who is at least IK years old, or an 
emancipated minor, and meets one or 
more of the following criteria: 
(A) An individual with only one consistent 
identified caregiver, who needs personal 
assistance 24 hour s per day with two or 
more of the activities of daily living 
(bathing, dressing, grooming, toileting, 



transferring, ambulating, eating, commu- 
nicating): or 
(B) An individual with no consistent iden- 
tified caregiver, who is unable to perform 
at least one of the activities of daily living 
(bathing, dressing, grooming, toileting. 



transferring, ambulating, eating, commu- 
nicating): or 
(C) An individual with no consistent iden- 
tified caregiver, who is unable to carry out 
instrumental activities of daily living 
(managing financial alfairs shopping, 



housekeeping, laundrv , meal preparation, 
using transportation, using a telephone, 
reading, writing): or 
(D) An individual who was previously 
abused, neglected or exploited, and the 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



S17 



PROPOSED RULES 



conditions leading to the previous incident 
continue to exist. 
(2) At- Risk Child: An at-risk child is an in- 
dividual under 18 years of age who meets 
one or more of the tollowing criteria: 

(A) A child with a chronic or severe phys- 
ical or mental condition whose parent(s) 
or caretaker(s) are unable or unwilling to 
meet the child's care needs: or 

(B) A child whose parents are mentally or 
physically impaired to the extent that 
there is a need for assistance with main- 
taining family stability and preventing or 
remedying problems which may result in 
abuse or neglect of the child: or 

(C) A child of adolescent (under age IS) 
parents or parents who had their first child 
when either parent was an adolescent and 
there is a need tor assistance with main- 
taining family stability, strengthening in- 
dividual support s \ stems, and preventing 
or remedying problems which may result 
in abuse or neglect of the child; or 

( Di A child who was previously abused or 
neglected, and the conditions leading to 
the previous incident continue to exist. 
(c) Enrollment of providers will be accom- 
plished in accordance with section l c )02(a) (23) 
of the Social Security Act. 

( 1 ) Case Management Qualifications. Case 
managers must meet the following quali- 
fications: 
(A) A case manager for at-risk adults must 
have a Master of Social Work degree or a 
Bachelor of Social Work degree, or be a 
social worker who meets State requirc- 
ments for Social Worker II classification. 



The individual must also have specialized 
training in recognizing risk factors related 
to abuse, neglect, or exploitation of elderly 
or disabled adults and in assessment of 
functional capacity and needs related to 
activities of daily living. 
( B) A case manager for at-risk children 
must have a Master of Social Work degree 
or a Bachelor of Social Work degree, or 
be a social worker who meets State re- 
quirements for Social Worker H classi- 
fication. The individual must also have 
specialized training in recognizing risk 
factors related to abuse or neglect of chil- 



dren and in assessing family functioning. 



(2) 



Provider Qualifications. Providers must 
meet the following qualifications: 
(A) Have qualified case managers with ex- 
perience in providing services to elderlv 
and disabled adults or to children and 



their families, with supervision provided 
by professional social workers. ~~ 

(B) Have a formal mechanism for consul- 
tation and multi-disciplinary case 
staffings. For adults this includes, at a 
minimum, a registered nurse with expen- 
ence in health and human services, other 
medical professionals as needed, and a 
tramed adult protective services social 
worker. For children, this must include 
a trained child protective services social 
worker and anv other agency staff provid- 
ing services to the child and his family. 

(C) Have experience as a fiduciary agent. 



(D) Meet applicable State and Federal laws 
governing the participation of providers in 
the Medicaid program. 

(E) Be certified bv the Division of Social 



Services as a qualified case management 
provider. 

Authority G.S. 108A-25(b); I08A-54; Social Se- 
curity Act. 1915(g). 

SECTION .0200 - DENTAL SERVICES 

.0201 DEFINITIONS 

(a) "Dental Services" means diagnostic, pre- 
ventive or corrective procedures or dentures pro- 
vided by or under the supervision of a dentist. 
These services include treatment of the teeth and 
associated structures of the oral cavity, and of 
disease, injury, or impairment which may affect 
the oral or general health of the individual. 

(b) "Emergency dental care services'' means 
those necessary to control bleeding, relieve pain, 
or eliminate acute infection, including emergency 



endodontic therapy: operative procedures which 
are required to prevent pulpal death and the im- 
minent loss of teeth; or treatment of injuries to 
the teeth or supporting structures (e.g., bone or 
soft tissues contiguous to the teeth); prosthetic 
repairs that, if delayed for prior approval, would 
adversely affect the health of the patient may be 
considered emergency procedures. 

(c) "Routine services" means examinations, 
x-rays, prophylaxis preventive services, non- 
surgical tooth extractions, amalgam fillings a«4 
fluoride treatm e nts. These seraees aw L . ubjoct 
k* for* tw** times during a consecutiv e 12 month 
period limitation, without prior approval. A 
dentist Fftay provide' limited routine seft4ees te- a 
fttW patient without referenc e te services that 
may have been performed pr e viou s ly by anoth e r 
dentist. However, bitewing. panor e x a«4 foil se- 
ries x rays have specific time restrictions impos e d 
t-fott- limit th e s e services, minor surgical proce- 
dures, restorative sen ices , prosthetic repairs and 



SIS 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



certain adjunctive services. Prior approval shall 
be required for all other services. 

Authority G.S. 108A-25(b); I08A-54; S.L. 19S5, 
c. 479, s. 86; 42 C.F.R. 440.100. 

.0206 RESTRICTIONS AND PRIOR APPROVAL 

(a) The Division of Medical Assistance shall 
have the right of prior approval for dental ser- 
vices except for routine and emergency services. 
as4 servic e s required to establish a treatment 
pteft which will be submitt e d fof prior approval. 

(b) ATI other Under the Medicaid program, 
dental services are subject to prior approval, 
with the exception ef emerg e ncy dental services 
a«4 certain limited dental cervices. Failur e to 
obtain prior approval when required w-tU result 
m denial ef Medicaid payment fof services feft- 
dorod. 

(c) All non emergency dental services ate sub 
jest to prior approval except twice a yeaf diag 
nootic evaluation servic e s necessary ef 
prophylaxis with fluoride twice a year. aft4 2 fes- 
torations smd 2 non surgical extractions m a 



12 month period, The 12 month period begins 
hdy- T et each y e ar. The Division of Medical 



Assistance has the right to require prior approval 
for any sen ices for individual providers who have 
demonstrated aberrant billing patterns in 
Medicaid. 

(4} A d e ntist accepting a new Medicaid patient 
shall perform aft »fal e xamination ±md tak e nee 
e ssory radiographs to establish a treatm e nt plan. 
The treatment plan, accompanied by 
radiographs, must he submitted fof prior ap- 
proval beforo further sen ices afe furnished the 
pationt, except as follows: 
(4} prophylaxis ef prophylaxis with fluoride 

which may he performed twice a yea? 

without prior approval; 

(3) a total ef twe non surgical extractions; 

(4) a total ef two restorations m- a 12 month 
period without prior approval. 

(e) T-be twe- r e storations, which afe allowed 
without prior approval, afe limited to either 
amalgam fillings fof any tooth, ef composites, 
plastics, silicates, ef acrylics fof ant e rior teeth. 
The allowance fof non surgical extractions afto 
restorations is intended to provide the dentist 
with a degree ef flexibility s» that minor treat 
monts ea» he completed at e«e sitting without 
requiring prior approval. 

Statutory Authority G.S. I08A-25(b); 10SA-54; 
S.L. 1985, c. 479, s. 86. 

.0207 GUIDELINES ON SERVICES 



(a) Each Medicaid recipient may receive two 
routin e oral examinations by the same provider 
in a consecutive 12-month period beginning July 
1 of each year, without prior approval. Thoso 
examinations, ift conjunction with radiographs, 
afe intended to provide information tot sub 
mission ef a treatment plaft fof prior approval. 

(b) The routine radiographs n e c e ssary to ostub 
bsb a diagnosis a»4 treatment plan may he taken 
twice ift a oonsocutivo 12 month period begin 
ftiftg Ttthy +7 ef each year without prior approval. 
A full mouth series is allowed every five years. 

(c) Routine Dental prophylaxis or dental 
prophylaxis with immediate fluoride application 
is limited to 2 occasions in a consecutive 
12-month period beginning July 1 of each year. 
without prior approval. Fluoride treatment is 
non-covered for patients 21 years of age and 
older. 

(d) R e storations afe limited to 2 procedures ift 
a consecutive 12 month period beginning .-toby + 
ef each year, without prior approval. Amalgams 
are authorized for all teeth. Composites, plastics, 
silicates, and acrylics are authorized for anterior 
teeth only. 

(e) Replacement of complete or partial 
dentures may be made once every ten years. 
Replacement after the expiration of fewer than 
ten years may be made with prior approval if 
failure to replace the dentures will cause an ex- 
treme medical problem or irreparable harm. 

(f) Initial reline of dentures may only be made 
if six months have elapsed since receipt of 
dentures. Subsequent refines are allowed only 
at five year intervals; if failure to reline in fewer 
than five years will cause an extreme medical 
problem or irreparable harm, refines may be 
made with prior approval. 

(g) Standard procedures and materials shall be 
used for full and partial dentures. 

Statutory Authority G.S. l08A-25(b); 108A-54; 
S.L. 1985, c. 479, s. 86. 

SUBCHAPTER 26D - LIMITATIONS ON 
AMOUNT: DURATION: AND SCOPE 

.0008 DENTURES 

fa} Coverage fof complete dentures shall he 
allowed only once to a f+ve yeaf period. 

fb} Coverag e fof partial dentures shall he ai- 
low e d onc e to a thr ee yeaf period; however, 
where medical necessity may he a factor, indi 
\ idual consideration may he giv e n. 

(e) Standard procedures a«4 mat e rials shall he 
us e d fof foil afi4 partial dentures. 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



S19 



PROPOSED RULES 



Authority G.S. l08A-25(b); S.L. 1985, c. 479, s. 
86; 42 C.F.R. 440.230(d). 

SLBCHAPTER 26H - REIMBURSEMENT PLANS 

SECTION .0600 - HOME HEALTH 
PROSPECTIVE REIMBURSEMENT 

.0601 REIMBURSEMENT PRINCIPLES 

A41 covered Services provided by Medicare cer- 
tified home health agencies participating in the 
North Carolina Medicaid Program are to be re- 
imbursed on a prospective payment basis as set 
forth in this plan. Qualified providers of Durable 
Medical Equipment (and DM I: associated sup- 
plies! and Home Infusion Therapies are paid on 
the basis of reasonable charges as defined in At- 
tachment 4.19-B. Section 7(B) and (C). of the 
North Carolina State Plan for Medical Assist- 
ance. The intent of this plan is to develop rea- 
sonable rates that provide incentives for the cost 
effective and efficient delivery of home health 
services. 

Authority G.S. I08A-25(b); 108A-54; 108A-55; 
S.L. J 985, c. 479, s. 86; 42 C.F.R. 440.70. 

.0602 REIMBURSEMENT METHODS 

(a) A maximum rate per visit is established 
annually for each of the following services: 

(1) Registered or Licensed Practical Nursing 
Visit; 

(2) Physical Therapy Visit; 

(3) Speech Therapy Visit; 

(4) Occupational Therapy Visit; 

(5) Home Health Aide Visit. 

(b) The maximum rates for the services identi- 
fied in Section (a) above are computed and ap- 
plied as follows: 

(1) Payment of claims for visits is based on 
the lower of the billed customary charges 
or the maximum rate of the particular 
service. Governmental providers with 
nominal charges may bill at cost. For this 
purpose, a charge that is less than 50 per- 
cent of cost is considered a nominal 
charge. For such governmental providers, 
the payment amount is equal to the lower 
of the cost as billed or the applicable 
maximum rate. 

(2) The maximum rates are derived from a 
base year selected by the state. The base 
year maximum rates are set at 90 percent 
of the median charge per visit for each 
service. 

(3) To compute the annual maximum rates, 
the base year median rates per visit are 
adjusted as described in Sections (4), (5), 
and (6). 



(4) 



Base year rates are adjusted by an annual 
cost index factor. The cost index has a 
labor component with a relative weight 
of 75 percent and a non-labor component 
with a relative weight of 25 percent. The 
relative weights are derived from the 
Medicare Home Health Agency Input 
Price Index and adopted by reference 
pursuant to N.C.G.S. 150B- 14(a)(2)(c) as 
published in the Federal Register dated 
May 30. 1987. 



(5) 



The annual cost index equals the sum of 
the products of multiplying the forecasted 
labor cost percentage change by 75 per- 
cent and multiplying the forecasted non- 
labor cost percentage change by 25 
percent. The base year rates are multi- 
plied by the cost index factor for each year 
from the base year to the year in which 
the rates apply. 

Other adjustments may be necessary for 
special factors relating to home health 
services or to comply with federal or state 
laws, regulations and policies. 
Medical supplies except those related to 
provision and use of Durable .Medical Equip- 
ment are reimbursed at the lower of a provider's 
billed customary charges or a maximum amount 
determined for each supply a»4 equipment item. 
44*e maximum amount fof each itom is deter 
mined by multiplying the prevailin g Modicaro 
P*h4 S allowable * amount by 4-44 percent t» ae- 
count fof the allocation ef overhead coots aft4by 
844 percent t& encourage maximum efficiency. 
Fees will be established based on average, rea- 
sonable charges if a Medicare allow able amount 



(6) 



(c) 



cannot be obtained for a particular supply item. 
Estimates of reasonable cost will be used if a 
Medicare allowable amount cannot be obtained 
for a particular supply or equipment item. The 
Medicare allowable amounts will be those 
amounts available to the Division of Medical 
Assistance as of July 1 of each year. 

(44 Parenteral *b4 Ent e ral Therapy afi4 other 
in hom e therapies (e.g., chemotherapy, antibiotic 
therapy) covered under the North Carolina 
Medicaid Program afe reimbursed at the lower 
e4 billed customary charges &f the comparabl e 
Medicare -Pert ft allowable amount. 

(e4 Extend e d home ettfe nursing is reimbursed 
at the lower ef billed customary charges ©f a» 
established hourly rater The fate is derived frefft 
the average billed charges pep hour i» the base 
y&a- a«4 is adjust e d annually by the percentag e 
change » the av e rag e hourly earnings e£ North 
Carolina ■■ ervice workers. 

(44 ift addition te prospective Fate payments, a 
hardship <**st settlement pas ment ts made te a 



S20 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



hom e hoalth agency if toe ag e ncy's totoi 
Modicaid reasonable? ©est- significantly exceeds its 

irj tijj , 7VTT?trttTWS ltu. yiiii_iiij u*i nn7TTi i v.ti itt hi i hi lii liui 

eest report. The amount ef toe hardship pay 
mont » equal to toe excess ee*t minus te» pef- 
eeftt »f an agency's total Medicaid eestr 
Hardship settlement payments will »to be avail 
able fof eest reporting p e riods b e ginning &» »f 

Authority G.S. 108A-25(b); 10SA-54; 108A-55; 
S.L. 1985, c. 479, s. 86; 42 C.F.R. 440.70. 

.0605 PAYMENT ASSURANCES 

(a) The state will pay the amounts determined 
under this plan for each covered service furnished 
in accordance with the requirements of the State 
Medicaid Plan, provider participation agreement, 
and Medicaid policies and procedures. The 
payments made under this methodology will not 
exceed the upper limits as established bv 42 
C.F.R. 447.325. 

(b) Participation in the program is limited to 
providers who accept, as payment in full, the 
amounts paid in accordance with this plan. 

(c) In all circumstances involving third party 
payment, Medicaid is the payor of last resort. 
Any amounts paid by non- Medicaid sources are 
deducted in determining Medicaid payment. For 
patients with both Medicare and Medicaid cov- 
erage, Medicaid payment is limited to the 
amount of coinsurance related to the services, 
supplies and equipment covered under the Med- 
icare program. 

(d) Excess payments Payment may be recouped 
from any provider found to be billing a» amount 
amounts in excess of its customary charges, or to 
excess &f costs if charges are nominal. The 
amount »f recoupment shall equal toe amount 
p«4 to excess ef customary charges, »f to e xcess 
&f costs if charges ate nominal. 

Authority G. S. l08A-25(b); 108A-54; 108A-55; 
S. L. 1985, c. 479, s. 86; 42 C.F.R. 440.70. 

****************** 



iV otice is hereby gh-en in accordance with G.S. 
150B-21.2 that the Department of Human 
Resources! Dhision of Medical Assistance intends 
to amend rule(s) cited as 10 NCAC 26H .0/02, 
.0303. 

1 he proposed effective date of this action is 
January I, 1993. 



1 he public hearing will be conducted at I ' :30 
p.m. on October 16, 1992 at the North Carolina 
Division of Medical Assistance, 1985 L'mstead 
Drive, Room 132. Raleigh, NC 27603. 



R 



easons for Proposed Actions: 



10 NCAC 26H .0102 - To meet the requirements 
of Title 29, Subpart Z, Section 1910.1030 of the 
Code of Federal Regulations in nursing facility 
payments. 

10 NCAC 26H .0303 - To meet the requirements 
of Title 29, Part 1910, Subpart Z, Section 
1910.1030 of the Code of Federal Regulations in 
ICF-MR facility payments. 



Co 



'Omment Procedures: Written comments con- 
cerning these amendments must be submitted by 
October 16. 1992, to: Division of Medical Assist- 
ance, 1985 L'mstead Drive, Raleigh. NC 27603, 
ATTN.: Bill llottel, APA Coordinator. Oral 
comments may be presented at the hearing. In 
addition, a fiscal impact statement is mailable 
upon written request from the same address. 

Hiditor's Note: These Rules have been filed as 
temporaiy rules effective July I, 1992 for a period 
of 180 days to expire on December 31, 1992. 

CHAPTER 26 - MEDICAL ASSISTANCE 

SUBCHAPTER 2611 - REIMBl RSEMENT PLANS 

SECTION .0100 - REIMBURSEMENT I OR 
NURSING FACILITY SERVICES 

.0102 RATE SETTING METHODS 

(a) A rate for skilled nursing care and a rate for 
intermediate nursing care is determined annually 
for each facility to be effective for dates of service 
for a twelve month period beginning each Octo- 
ber 1. Each patient will be classified in one of 
the two categories depending on the services 
needed. Rates are derived from either desk or 
field audited cost reports for a base year period 
to be selected by the state. Cost reports are tiled 
and audited under provisions set forth in Rule 
.0104 of this Section. The criteria for determin- 
ing the classification of each patient are presented 
in Appendix 1 of Attachment 3.1 -A of the state 
plan. The minimum requirements of the 1987 
OBRA are met by these provisions. 

(b) Each prospective rate consists of two com- 
ponents: a direct patient care rate and an indirect 
rate computed and applied as follows: 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



821 



PROPOSED RULES 



( 1 ) The direct rate is based on the Medicaid 
cost per day incurred in the following cost 
centers: 

(A) Nursing, 

(B) Dietary or Food Service, 

(C) Laundry and Linen, 

(D) Housekeeping, 

(E) Patient Activities, 

(F) Social Services, 

(G) Ancillary Services (includes several cost 
centers). 

(2) To compute each facility's direct rate for 
skilled care and intermediate care, the di- 
rect base year cost per day is increased by 
adjustment factors for price changes as set 
forth in Rule .0102(c). 

(A) A facility's direct rates cannot exceed 
the maximum rates set for skilled nursing 
or intermediate nursing care. However, 
the Division of Medical Assistance may 
negotiate direct rates that exceed the 
maximum rate for ventilator dependent 
patients. Payment of such special direct 
rates shall be made only after specific prior 
approval of the Division of Medical As- 
sistance. 

(B) A standard per diem amount will be 
added to each facility's direct rate, includ- 
ing facilities that are limited to the maxi- 
mum rates, for the projected statewide 
average per diem costs of the salaries paid 
to replacement nurse aides for those aides 
in training and testing status and other 
costs deemed by HCFA to be facility 
costs related to nurse aide training and 
testing. The standard amount is based on 
the product of multiplying the average 
hourly wage, benefits, and payroll taxes 
of replacement nurse aides by the number 
of statewide hours required for training 
and testing of all aides divided by the 
projected total patient days. 

(3) If a facility did not report any costs for 
either skilled or intermediate nursing care 
in the base year, the state average direct 
rate will be assigned as determined in Rule 
.0102(d) of this Section for the new type 
of care. 

(4) The direct maximum rates are developed 
by ranking base-year per diem costs from 
the lowest to the highest in two separate 
arrays, one for skilled care and one for 
intermediate care. The per diem cost at 
the 80th percentile in each array is selected 
as the base for the maximum rate. The 
base cost in each array is adjusted for price 
changes as set forth in Rule .0102(c) of 
this Section to determine the maximum 



statewide direct rates for skilled care and 
intermediate care. 
(5) Effective October 1, 1990, the direct rates 
will be adjusted as follows: 

(A) A standard per diem amount will be 
added to each facility's skilled and inter- 
mediate rate to account for the combined 
expected average additional costs for the 
continuing education of nurses' aides; the 
residents' assessments, plans of care, and 
charting of nursing hours for each patient; 
personal laundry and hygiene items; and 
other non-nursing staffing requirements. 
The standard amount is equal to the sum 
of: 

(i) the state average annual salary, bene- 
fits, and payroll taxes for one registered 
nurse position multiplied by the num- 
ber of facilities in the state and divided 
by the state total of patient days; 

(ii) the total costs of personal laundry and 
hygiene items divided by the total pa- 
tient days as determined from the FY 
1989 cost reports of a sample of nursing 
facilities multiplied by the annual ad- 
justment factor described in Rule 
.0102(c)(4)(B) of this Section; and 

(iii) the state average additional pharmacy 
consultant costs divided by 365 days 
and then divided by the average number 
of beds per facility. 

(B) A standard amount will be added to the 
intermediate rate of facilities that were 
certified only for intermediate care prior 
to October 1, 1990. This amount will be 
added to account for the additional cost 
of providing eight hours of RN coverage 
and 24 hours of licensed nursing coverage. 
The standard amount is equal to the state 
average hourly wage, benefits and payroll 
taxes for a registered nurse multiplied by 
the 16 additional hours of required li- 
censed nursing staff divided by the state 
average number of beds per nursing facil- 
ity. A lower amount will be added to a 
facility only if it can be determined that 
the facility's intermediate rate prior to 
October 1, 1990 already includes licensed 
nursing coverage above eight hours per 
day. The add-on amount in such cases 
would be equal to the exact additional 
amount required to meet the licensed 
nursing requirements. 

(C) The standard amounts in Subpara- 
graphs (2)(B), (5)(A), and (5)(B) of this 
Rule, will be retained in the rates of sub- 
sequent years until the year that the rates 
are derived from the actual cost incurred 



S22 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



in the cost reporting year ending in 1991 
which will reflect each facility's actual cost 
of complying with all OBRA '87 require- 
ments. 

(6) Upon completion of any cost reporting 
year any funds received by a facility from 
the direct patient care rates which have 
not been spent on direct patient care costs 
as defined herein are repaid to the State. 
This will be applied by comparing a facil- 
ity's total Medicaid direct costs with the 
combined direct rate payments received 
for skilled and intermediate care. Costs 
in excess of a facility's total prospective 
rate payments are not reimburseable. 

(7) The indirect rate is intended to cover the 
following costs of an efficiently and eco- 
nomically operated facility: 

(A) Administrative and General, 

(B) Operation of Plant and Maintenance, 

(C) Property Ownership and Use, 

(D) Mortgage Interest. 

(8) Effective for dates of service beginning 
October 1, 1984 and ending September 30, 
1985 the indirect rates are fourteen dollars 
and sixty cents ($14.60) for each SNF day 
of care and thirteen dollars and fifty cents 
($13.50) for each ICF day of care. These 
rates represent the first step in a two step 
transition process from the different SNF 
and ICF indirect rates paid in 1983-84 and 
the nearly equal indirect rates that will be 
paid in subsequent years under this plan 
as provided in this Rule. 

(9) Effective for dates of service beginning 
October 1, 1985 and annually thereafter 
per diem indirect rates will be computed 
as follows: 

(A) The average indirect payment to all fa- 
cilities in the fiscal year ending September 
30, 1983 [which is thirteen dollars and two 
cents ($13.02)) will be the base rate. 

(B) The base rate will be adjusted for esti- 
mated price level changes from fiscal year 
1983 through the year in which the rates 
will apply in accordance with the proce- 
dure set forth in Rule .0102(c) of this 
Section to establish the ICF per diem in- 
direct rate. 

(C) The ICF per diem indirect rate shall be 
multiplied by a factor of 1.02 to establish 
the SNF per diem indirect rate. This ad- 
justment is made to recognize the addi- 
tional administrative expense incurred in 
the provision of SNF patient care. 

(10) Effective for dates of service beginning 
October 1, 1989, a standard per diem 
amount will be added to provide for the 



additional administrative costs of prepar- 
ing for and complying with all nursing 
home reform requirements. The standard 
amount is based on the average annual 
salary, benefits and payroll taxes of one 
clerical position multiplied by the number 
of facilities in the state divided by the state 
total of patient days. 
(11) Effective for dates of service beginning 
October I, 1990, the indirect rate will be 
standard for skilled and intermediate care 
for all facilities and will be determined by 
applying the 1990-91 indirect cost adjust- 
ment factors in Rule .0102(c) of this Sec- 
tion to the indirect rate paid for SNF 
during the year beginning October 1, 
1989. Thereafter the indirect rate will be 
adjusted annually by the indirect cost ad- 
justment factors, 
(c) Adjustment factors for changes in the price 
level. The rate bases established in Rule 
.0102(b), are adjusted annually to reflect increases 
or decreases in prices that are expected to occur 
from the base year to the year in which the rate 
applies. The price level adjustment factors are 
computed using aggregate base year costs in the 
following manner: 

(1) Costs will be separated into direct and 
indirect cost categories. 

(2) Costs in each category will be accumu- 
lated into the following groups: 

(A) labor, 

(B) other, 

(C) fixed. 

(3) The relative weight of each cost group is 
calculated to the second decimal point by 
dividing the total costs of each group (la- 
bor, other, and fixed) by the total costs for 
each category (direct and indirect). 

(4) Price adjustment factors for each cost 
group will be established as follows: 

(A) Labor. The expected annual percent- 
age change in direct labor costs as deter- 
mined from a survey of nursing facilities 
to determine the average hourly wages for 
RNs, LPNs, and aides paid in the current 
year and projected for the rate year. The 
percentage change for indirect labor costs 
is based on the projected average hourly 
wage of N.C. service workers. 

(B) Other. The expected annual change in 
the implicit price deflator for the Gross 
National Product as provided by the 
North Carolina Office of State Budget and 
Management. 

(C) Fixed. No adjustment will be made for 
this category', thus making the factor zero. 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



823 



PROPOSED RULES 



(D) The weights computed in (c)(3) of this 
Rule shall be multiplied times the per- 
centage change computed in (c)(4)(A), (B) 
and (C) of this Rule. These products 
shall be added separately for the direct and 
indirect categories. 

(E) The sum computed for each category 
in (c)(4)(D) of this Rule shall be the price 
level adjustment factor for that category 
of rates (direct or indirect) for the coming 
fiscal year. 

(F) However, for the rate period beginning 
October 1, 1991 through September 30, 
1992 the forecast of the N.C. Service 
Wages percent applied to the 1991-92 In- 
patient Hospital and Intermediate Care 
Facility for the Mentally Retarded rates is 
applied to the Labor component weight 
computed in (c)(4)(A) of this Rule. 

(G) For the rate period beginning October 
1, 1991 through September 30, 1992 the 
direct adjustment factor determined under 
(c)(4) of this Rule will be applied to the 
direct rate adjustments determined under 
(b)(2), (b)(5)(A) and (b)(5)(B) of this 
Rule. 

(d) The skilled and intermediate direct patient 
care rates for new facilities are established at the 
lower of the projected costs in the provider's 
Certificate of Need application inflated to the 
current rate period or the average of industry base 
year costs and adjusted for price changes as set 
forth in Rule .0102(c) of this Section. A new 
facility receives the indirect rate in effect at the 
time the facility is enrolled in the Medicaid pro- 
gram. In the event of a change of ownership, the 
new owner receives the same rate of payment 
assigned to the previous owner. 

(e) Each out-of-state provider is reimbursed at 
the lower of the appropriate North Carolina 
maximum rate or the provider's payment rate as 
established by the State in which the provider is 
located. For patients with special needs who 
must be placed in specialized out-of-state facul- 
ties, a payment rate that exceeds the North 
Carolina maximum rate may be negotiated. 

(f) Rates: 

(1) A single all-inclusive prospective per diem 
rate combining both the direct and indi- 
rect cost components can be negotiated 
for nursing facilities that specialize in pro- 
viding intensive services for head-injured 
or ventilator-dependent patients. The rate 
may exceed the maximum rate applicable 
to other Nursing Facility services. For 
head-injury services, a facility must spe- 
cialize to the extent of staffing at least 50 
percent of its Nursing Facility licensed 



beds for head-injury services. The facility 
must also be accredited by the Commis 
sion for the Accreditation of Rehabili 
tation Facilities (CARF). For ventilator 
services, the only facilities that are eligible 
for a combined single rate are small 
freestanding faculties with less than 21 
Nursing Facility beds and that serve only 
patients requiring ventilator services. 
Ventilator services provided in larger fa- 
culties are reimbursed at higher direct rates 
as described in Rule .0102(b)(2)(A) of this 
Section. 

(2) A faculty's initial rate is negotiated based 
on budget projections of revenues, allow- 
able costs, patient days, staffing and 
wages. A complete description of the fa- 
culty's medical program must also be 
provided. Rates in subsequent years are 
determined by applying the average an- 
nual skilled nursing care adjustment fac- 
tors to the rate in the previous year, unless 
either the provider or the State requests a 
renegotiation of the rate. 

(3) Cost reports for these services must be 
filed in accordance with the rules in .0104 
of this Section, but there will be no cost 
settlements for any differences between 
costs and payments. Since it is appropri- 
ate to include all financial considerations 
in the negotiation of a rate, a provider will 
not be eligible to receive separate pay- 
ments for return on equity as defined in 
Rule .0105 of this Section. 

(g) In addition to the prospective direct per 
diem rates developed under this Section, effective 
July jj 1992, an intenm payment add on will be 
applied to the total rate to cover the estimated 
cost required under Title 29. Part 1910; Subpart 
Z, Section 1910.1030 of the Code of Federal 



Regulations. The interim rate will be subject to 
final settlement reconciliation with reasonable 



cost to meet the requirements of Part 1910. The 
final settlement reconciliation will be effectuated 



during the annual cost report settlement process. 
An intenm rate add on to the prospective rate 
will be allowed, subject to final settlement re- 
conciliation, in subsequent rate periods until ad- 
equate cost In story is available to include the cost 



1910 in the 



of meeting the requirements of Part 
prospective rate. 



Authority G.S. 108A-25(b); IOSA-54; 10SA-55; 
S. L. 19S5, c. 4~9, s. 86; 42 C.F.R. 447, Subpart 
C; 29 C.F.R. 1910, Subpart Z; S.L. 1991. c. 689, 
s. 95. 



824 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



SECTION .0300 - ICF-.MR PROSPECTIVE RATE 
PLAN 

.0303 METHODS AND STANDARDS FOR 
DETERMINING RATES 

(a) Prospective rates for each ICF-MR pro- 
vider shall be determined annually to be effective 
for a 12-month period beginning July 1 and 
ending the following June 30. These rates shall 
be derived from actual cost data from a base year 
to be selected by the state presented in cost re- 
ports submitted to and audited by the state 
agency. The year to which this cost report ap- 
plies shall be known as the base year. Appro- 
priate adjustments may be made to these base 
year costs to accommodate changes in applicable 
federal and state laws or regulations. 

(b) The per diem rate for each provider in the 
base year shall be determined by dividing the 
total allowable costs in that year by the total ac- 
tual number of patient days. 

(c) The base year per diem rate for each pro- 
vider will be inflated from the base year to the 
year in which the rate will apply using inflation 
factors for each intervening year computed as 
follows: 

(1) Cost data from the base year cost reports 
will be aggregated to determine the pro- 
portion (percent of total) of cost in each 
of the following categories: 

(A) Labor; 

(B) Other Operating; 

(C) Capital which includes the cost for use 
or ownership of physical plant and mov- 
able equipment. 

(2) Inflation rates for each category will be 
established using official estimates of in- 
flation provided by the North Carolina 
Office of Budget and Management for the 
year in which the rate shall apply. 

(A) Labor costs shall be inflated by the es- 
timate of the increase in Average Annual 
Service Wages in North Carolina, adjusted 
for any special factors related to ICF-MR 
personnel, however, salaries for all per- 
sonnel shall be limited to levels of com- 
parable positions in state owned facilities 
or levels specified by the Director of the 
Division of Medical Assistance; 

(B) Other costs shall be inflated by the es- 
timate of the Implicit Price Deflator for 
the U. S. Gross National Product; how- 
ever, management fees shall be limited to 
a sum equal to seven percent of the max- 
imum ICF rate in the state during the 
current fiscal year; 

(C) Capital cost shall not be inflated. 



(3) Rates determined in 10 NCAC 26H 
.0303(c)(2) will be multiplied times the 
percentages determined in 10 NCAC 26H 
.0303(c)(1) to obtain a weighted inflation 
rate for each category of cost. 

(4) The weighted rates determined in 10 
NCAC 26H .0303(c)(3) will be added to 
obtain the composite inflation rate. 

(5) No inflation factor for any provider will 
exceed the maximum amount permitted 
for that provider by federal or state law 
or regulation. 

(d) The prospective rate established in Para- 
graph (c) of this Rule, will be paid to the pro- 
vider for every Medicaid eligible day during the 
year in which it will apply. These prospective 
rates may be determined after the date in which 
they are to go into effect and paid retroactively 
to that date. 

(e) If allowable costs are less than prospective 
payments during a cost reporting period, a pro- 
vider may retain one-half of the difference be- 
tween costs and payments, up to an amount of 
five dollars ($5.00) per patient day. The balance 
of unexpended payments must be refunded to the 
Division of Medical Assistance. 

(f) New providers are those that have not filed 
a cost report covering at least one full year of 
normal operations. A new provider shall have a 
negotiated rate based upon the provider's pro- 
posed budget. This rate for a new facility shall 
not exceed the maximum rate being allowed to 
existing facilities or any other limit established in 
state law. The rate shall be rebased to the actual 
cost incurred in the fust full year of normal op- 
erations in the first year after audited data for that 
first year of normal operations is completed. 

(g) A special payment in addition to the pro- 
spective rate shall be made in the year that any 
provider changes from the cash basis to the ac- 
crual basis of accounting for vacation leave costs. 
The amount of this payment shall be determined 
in accordance with Title XVIII allowable cost 
principles and shall equal the Medicaid share of 
the vacation accrual that is charged in the year 
of the change including the cost vacation leave 
earned for that year and all previous years less 
vacation leave used or expended over the same 
period and vacation leave accrued prior to the 
date of certification. The payment shall be made 
as a lump sum payment that represents the total 
amount due for the entire fiscal year. An interim 
payment may be made based on a reasonable 
estimate of the cost of the vacation accrual. The 
payment shall be adjusted to actual cost after 
audit. 

(h) Start-up costs are cost incurred by an 
ICF-MR provider while preparing to provide 



7:S NORTH CAROLINA REGISTER July 15, 1992 



S25 



PROPOSED RULES 



services. It includes the cost incurred by provid- 
ers to provide services at the level necessary to 
obtain certification less any revenue or grants re- 
lated to start-up. The North Carolina Medicaid 
Program will reimburse these start-up costs up 
to a maximum equal to the facility's rate times 
its beds times 120 days. This reimbursement will 
be made in addition to the facility's per diem rate. 
The amount shall be payable upon receipt of a 
special start-up cost report. This report should 
be filed within 15 months of the certification 
date. No advance of start-up funds shall be made 
prior to the desk audit of the start-up cost report. 
(i) The annual capital cost or lease expense 
shall be limited to the sum of (1) and (2) as fol- 
lows: 

(1) The annual depreciation on plant and 
fixed equipment that would be computed 
on assets equal to thirty thousand dollars 
($30,000) per bed during the fiscal year 
1982-83 adjusted for changes in the Dodge 
Building Cost Index of North Carolina 
cities for each year since 1982-83. This 
amount is computed using the straight 
line method of depreciation and the useful 
life standards established by the American 
Hospital Association. 

(2) .An interest allowance equal to ten percent 
of the maximum allowed historical cost 
used to compute the annual depreciation 
on plant and fixed equipment. 

(3) This capital lease limit does not apply to 
leases in effect prior to August 3, 1983. 

(4) The limitation on capital cost shall not be 
applied to facilities with fewer than 21 
certified beds, nor to facilities consisting 
of multiple detached buildings, no one of 
which contains more than eight certified 
beds. 

(j) In addition to the prospective direct per 
diem rates developed under this Section, effective 
July U 1 992. an interim payment add on will be 
applied to the total rate to cover the estimated 
cost required under Title 29, Part 1910, Subpart 
Z. Section 1910.11)30 of the Code of Federal 
Regulations. The interim rate will be subject to 
final settlement reconciliation with reasonable 
cost to meet the requirements of Part 1910. The 
final settlement reconciliation will be effectuated 



during the annual cost report settlement process. 
An interim rate add on to the prospective rate 
will be allowed, subject to final settlement re- 
conciliation, in subsequent rate periods until ad- 
equate cost histon is available to include the cost 
of meeting the requirements of Part 1 9 1 (J m the 
prospective rate. 



Authority G.S. I08A-25(bi; 10SA-54; J08A-55 
S.L. 1985, c. 479, s. 86; 42 C.F.R. Part 447 
Subpart C. 

TITLE 15A - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 



No 



otice is hereby given in accordance with G.S 
I50B-2/.2 that the DEM-Groundwater Section 
intends to adopt rules cited as ISA NCAC IK 
.0/0/ - .0103; .0201 - .0202; .0301 - .0305; .0401 
- .0404. 

1 he proposed effective date of this action is No- 
vember 2. 1992. 

1 he public hearing will be conducted at 7:00 
p.m. on August 6, 1992 at the Ground Flooi 
Hearing Room. Archdale Building, 512 N 
Salisbury Street, Raleigh, North Carolina. 

IXeason for Proposed Action: The proposed 
rules will allow the Department to make loans to 
owners and operators of underground storage 
tanks ( L'STs) to replace or upgrade L STs in ac- 
cordance with 15A NCAC 2N. The proposed 
rules set application and review procedures, limits 
on term of loans, and interest rates. Loan appli- 
cations will only be accepted through December 
31. 1994. 

C omment Procedures: A II persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted through August 
Nth. 1992. Please submit comments to Mr. 
David I lance, Division of Environmental Man- 
agement, Groundwater Section, P.O. Box 29535, 
Raleigh. NC 27626-0535. (919) "33-3221. Please 
notify Mr. I lance prior to the public hearing if you 
desire to speak. Oral presentation lengths may 
be limited depending on the number oj people that 
wish to speak at the public hearing. 

IT IS VERY IMPORTANT THAT ALL INTER- 
ESTED AND POTENTIALLY AFFECTED PER- 
SONS, GROUPS, BUSINESSES, ASSOCI- 
ATIONS, INSTITUTIONS OR AGENCIES MAKE 
THEIR MEWS AND OPINIONS KNOWN TO 
THE DEPARTMENT THROUGH THE PUBLIC 
HEARING AND COMMENT PROCESS, 
WHETHER THEY SUPPORT OR OPPOSE ANY 
OR ALL PROVISIONS OF THE PROPOSED 
RULES. 



S26 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



1 his Rule affects the expenditures or revenues 
of local funds. A fiscal note was submitted to the 
Fiscal Research Division on April 29 1992, 
OSBM on April 29, 1992, \.C. League of 
Municipalities on April 30, 1992, and .X.C. Asso- 
ciation of County Commissioners on April 30, 
1992. 

CHAPTER 1 - DEPARTMENTAL RULES 

SUBCHAPTER IK - GROUNDWATER 
PROTECTION LOAN" FUND 

SECTION .0100 - PROGRAM SCOPE 

.0101 GENERAL 

(a) The purpose of this Subchapter is to es- 
tablish requirements for borrowers and adminis- 
trators of the monies of the Groundwater 
Protection Loan Fund (loan Fund). 

(b) The Division of Fnvironmental Manage- 
ment (Division) shall administer the Foan Fund. 



Statutory 
143B-279.2. 



Authority G.S. 143-2I5.94P; 



.0102 APPLICABILITY 

(a) Monies from the I oan Fund are available 
to all owners of commercial underground storage 
tanks in North Carolina which were in use on 
July jj 1991, and which are subject to the tech- 
nical standards contained in 15A NCAC 2N. 

(b) Monies from the I oan Fund shall only be 
used to upgrade or replace commercial under- 
ground storage tanks to meet technical standards 
set forth in 1 5A NCAC 2N relating to corrosion 
protection, spill and overfill containment and 



prevention, and leak detection. Loan monies 
shall not be used to conduct environmental site 
assessments or environmental remediation, to 
construct new buildings, nor to install or replace 
petroleum marketing equipment such as 
dispensers, islands, and canopies. I oan monies 
may be used for landscaping or paving of the site 
only if the landscaping or paving is required to 
complete the upgrade or to restore the site alter 
tank replacement. 

(c) Fach loan shall be designated for a specific 
site. No owner shall apply for or receive more 
than one loan under the provisions of this Sub- 
chapter for a single site. 

(d) No single loan under the provisions of this 
Subchapter shall exceed one hundred thousand 
dollars ($100,01)0), 

(e) No owner shall apply for or receive loans 
under the provisions of this Subchapter in excess 
of five hundred thousand dollars ($31)0. 000). If 
one or more business(es) under the same or dif- 



ferent name(s) is (are) Fifty percent owned by a 
single individual, partnership, or corporation, this 
(these) companv(ies) shall not apply for or re- 
ceive loans under the provisions of this Sub- 
chapter in excess of five hundred thousand 
doUars ($500,000). 

(f) Applications for loans from the Foan Fund 
must be made in accordance with the provisions 
of this Subchapter and must be received by a 
participating Bank prior to January 1 1995. AJi 
approved loans must be funded on or before 
June 30, 1995. 



Statutory Authority 
143-215.94T. 



G.S. 



143-215.94P; 



.0103 DEFINITIONS 

fa) The terms used in this Subchapter shall be 
as defined in ISA NCAC 2N .0203. 

(b) The following definitions are defined for the 
purpose of this Subchapter: 

( 1) "Annual Operating Fee" is an annual fee 
required to be paid to the Department by 
the owner or operator of each commercial 
underground storage tank in use on or af- 
ter January 1 of the year, beginning with 
1989. 
"bank" means any commercial lending 






institution as specifically defined in 

N.C.G.S. 53-1. 

"Borrower" means anv owner of a com- 



mercial underground storage tank who 
applies for or receives a loan from the 
Foan Fund. 
(4) "Coordinator" means an individual or 
contractor authorized by the Department 
to coordinate all activities between the 
Department and banks pertaining to the 
loan Fund. The official title of this in- 
dividual or contractor shall be Foan Fund 
Coordinator. 

"Department" means the Department of 
Fnvironment. Health, and Natural Re- 



151 

<±1 



sources. 

"Serious Contamination 
groundwater contamination at 



means anv 

evels 



5A 



Q 



above the standards established in 
NCAC 2L or anv soil contamination ex- 
tending bevond the property boundaries 
at levels above guidelines set bv the De- 
partment. 
"lank In Use' 



storage tank which 



means an underground 
is intended for the 



containment or dispensing of petroleum 
products. 



Statutory Authority G.S. 
143-215.94P; /43-2/5.94T. 



143-215.94A; 



7:S NORTH CAROLINA REGISTER July 15, 1992 



827 



PROPOSED RULES 



SECTION .0200 - APPLICATION 



(5) Any applicable fees required by Paragra] 
(b) of Rule .0401 of this Subchapter, 
(c) If the borrower plans to use real esta 
where commercial petroleum underground stc 



.0201 ELIGIBILITY 

For an owner of a commercial petroleum age tanks are located or were formerly located 
underground storase tank to be eligible for a loan 



from the I oan Lund to upgrade or replace that 
tank, all of the following criteria must be met. 
( 1 ) 1 he tank must be located in North Carolina 
and have been in use on July 1. 1991. 



collateral, a site assessment must be performi 
by a Professional Engineer or a Licens< 



(2) The tank must he registered with the De- 
partment. 

(3) All annual operating fees required of the 
borrower pursuant to G.S. 143-215. 94C 
must haye been paid. 

(4) The owner must have formally applied for 
a conyentional loan from his primary bank 
for the subject work, and must have been 
denied based solely on reasonable concerns 
with respect to potential liability for envi- 
ronmental compliance by the lender, not fi- 
nancial reasons. The owner must haye 
qualified for the loan in all other respects 
using generally accepted standards prevailing 
among commercial lending institutions. 



Geologist as defined in G.S. 89C-3 and G. 
89E-3, respectiyely. prior to the submittal of tl 
application. The site assessment report shall 1 
attached to a letter of certification stating wheth 
the site has serious contamination, and sha ll 1 
submitted to the Bank with the application. 



(d) In the event the borrower must use re 
estate where commercial petroleum undergrour 



storage tanks are not and haye not been locate 



as collateral, the borrower must certify and fu 
nish evidence satisfactory to the Bank and in a 
cordanee with all generally accepted preyailir 
standards commonly used by banks, includir 



those for environmental compliance, that the re 
estate to be used would be acceptable as colla 
eral. 



Statutory Authority 
143-215.94T. 



G.S. 



143-215.94P; 



Statutory Authority G.S. 
143-215.94P; 143-2I5.94T. 



I43-2I5.94C 



SECTION .0300 - LOAN ADMINISTRATION 



.0301 BANK ELIGIBILITY 

(a) Fach Bank in North Carolina will be ir 



.0202 APPLICATION PROCEDLRES 

(a) Each application to the Loan Fund must 
be made through a Bank that has entered into \ited to participate in the I oan Fund pro gran 
an agreement with the Department to act as an 
administrative agency for the Loan Fund. 

(b) Each application submitted to the I oan 
Fund must be made on forms supplied by the 
Department and must be accompanied by the 
following: 



Acceptance of a letter of agreement with the Dj 
partment will qualify the Bank to participate j 
the administration of the I oan Fund. 



(b) For the purposes of providing loans fror 
the loan Fund. Banks will act only as admini: 



trative agencies for the Department and, if actin 



( 1 ) A letter from the declining Bank stating within the terms of the agreement with the De 
the reason the loan application was de- partment. do not incur any financial or environ 
nied; 



(2) Supporting financial statements: 

(3) A complete scope of work for the upgrade 
or replacement of the tankfs) which pro- 
vides a description of the work to be per- 
formed addressing each of the following 
three categories according to the technical 
standards specified in 1 5 A NCAC 2N: 

( A ) Corrosion protection for tank(s) and 
piping. 

(Bl Spill and overfill protection and pre- 
vention, and 

(C) I eak detection for tanks and piping: 

(4) A binding estimate for the scope of work. 

I hi-. Aork may be performed hv the bor- 
rower's own qualified construction per- 
sonnel: and 



mental liabi lity associated with loans from th 
I oan Fund. 



Statutory' Authority G.S. 143-21 5. 94P. 

.0302 LOAN PROCESSING BY BANKS 

(a) Banks will utilize any rules and guidelini 



adopted and established bv the Department 



These rules and guidelines will complement gen 
e rally accepted standards prevailing among bank 
and relating to commercial loan 

(b) Banks will receive and process loan appli 
cations 

(c) Banks will gather and process all necessary 
documents. 

(d) Banks will receive monthly payments frorr 
borrowers, maintain records, and deposit pay 



828 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



ment amounts daily to a designated account of 
the State Treasurer after deduction of fees. 
" (e) Banks will maintain ali original loan docu- 
ments until the loan is satisfied. 
IA\ The Bank will forward one copy of each of 
the following documents to the Coordinator: 

(1) the Loan Application; 

(2) the Bank letter explaining the reasons for 
denial; 

(3) financial statements; 

(4) credit report; 

(5) scope of work and binding cost estimate; 

(6) originating Bank s letter of certifications; 
and 

(7) site assessment report . if applicable, and if 
other real property is used as collateral, 
the borrower s certification and oilier evi- 
dence satisfactory to the Bank that the 
property conforms with the applicable 
Rules of this Subchapter. 

(g) The Bank shall make a monthly report to 
the Coordinator of each delinquent loan. 

(h) Each Bank shall make all Loan Lund files 
available to audit and review bv the Coordinator. 



(1) The number and amount of loan com- 



mitments; 



£21 

(41 
(51 



Available funds to be lent; 
Amount lent to each borrower; 



Amount lent bv each bank; and 



1 he following information for each loan: 
(A) Name of Borrower; 
(13) Originating Bank; 

(C) Amount of Loan; 

(D) Whether loan is for upgrade or for re- 
placement; and 

(E) Status of loan. 

(f) 1 he Coordinator shall make the Loan Fund 
files available to audit and review by the Depart- 
ment, the Petroleum Underground Storage Tank 
Funds Council, or other authorized persons or 
agencies. 



Statutory Authority 
I43-215.94P. 



G.S. 143-215.940(g); 



.0304 LOAN APPROVAL CRITERIA 

(a) Before a loan may be funded, all supporting 
materials must have been received and reviewed 



the Department, the Petroleum Underground bj/_ the Bank administering the loan. 
Storage lank Funds Council, or other author- 
ized persons or agencies. 

(i) The Bank shall notify the Borrower of the 
approval or denial of the loan application. 

Statutory Authority G.S. 143-2I5.94P. 

.0303 DUTIES OF THE LOAN FUND 
COORDINATOR 

(a) The Coordinator is responsible for coordi- 
nating Bank and Department activities relative to 
all loans under the Loan Fund. 

(b) The Coordinator is responsible for dcter- 
mining the following: 



(b) Eligibility for the loan shall be determined 
in accordance with Rules .1)102 and .0201 of this 
Subchapter. 

(c) If real estate w here commercial petroleum 
underground storage tanks are located is to be 
used as collateral, the site assessment must show 
that no serious contamination exists. Other real 
estate mav only be used as collateral considering 



( 1) whether all required annual operating fees 
have been paid; 

(2) whether the application exceeds allowable 
amounts tor funding pursuant to Para- 
graphs (c), (d), and {£]_ of Rule .0102 of 
this Subchapter; 

(3) whether there are sufficient funds available 
in the 1 oan Fund; and 

(4) whether the application has been com- 
pleted in accordance with this Subchapter. 

(c) h the Coordinator finds that the loan can- 



not be funded, he shall notify the Bank of the 
reasons that the loan cannot be funded. 



(d) The Coordinator shall keep copies of all 
completed loan documents. 

(e) The Coordinator shall make a quarterly re- 
port to the Department and the Petroleum 
Underground Storage lank Funds Council indi- 
cating the following: 



all generally accepted prevailing standards com- 
monly used by banks, including those for envi- 
ronmental compliance. 

(d) Banks will approve or disapprove loans 
from the Loan Fund based on generally accepted 
commercial bank loan standards including those 
for considering the appraised value of any real 
estate used for collateral. 

Statutory Authority G.S. I43-215.94P. 

.0305 DELINQUENT ACCOUNTS 

(a) lor a loan made in accordance with this 
Subchapter, a loan is delinquent w hen the pa\ - 
ment is over 30 davs in arrears. 

(b) Banks are responsible for placing one tele- 
phone call and one certified letter to any bor- 
rower whose account is delinquent. 

(c) If a loan account remains delinquent. Banks 
will forward notice of the delinquent account to 
the 1 oan Coordinator 30 davs after the placing 
of the telephone call or the mailing o\_ the certi- 
fied Idler 

Statutory Authority G.S. 143-21 S.94P. 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



829 



PROPOSED RULES 



SECTION .0400 - LOAN CONDITIONS 

.0401 LOAN ADMINISTRATION FEES 
AND COSTS 

(a) All fees and administrative costs associated 
with processing and servicing a loan are to be 
paid hv the borrower. 

(b) The borrower shall pav to the Bank at the 
tune the loan application is submitted, fees for a 
credit report and for an appraisal if real property 
must be used for collateral. Fees for title insur- 
ance, recording, and other closing costs shall be 
paid bv the borrower as applicable. 

(c) A loan origination fee equal to the greater 
of seven hundred lift v dollars (S750.0Q) or one 
percent of th_e loan amount shall be paid to the 
Bank bv the borrower upon approval of the loan. 

(d) A loan servicing fee equal to the greater of 
fifty dollars ($50.00) or one-twelfth of one per- 



cent per month of the outstanding loan balance 
will be retained bv the Bank from each monthly 
payment. 

(e) .Ail coordination costs of the loan fund shall 
be paid out of the interest on loans that is re- 
ceived bv the Department. 

Statutory Authority G.S. 143-215.94P. 

.0402 INTEREST AND TERM 

(a) .All loans made in accordance with this 
Subchapter shall use a variable mterest rate. 1 he 
interest rate shall be the New York Prime Rate. 
as reported in the Wall Street Journal, plus three 
percent. This rate includes the loan fees specified 
in Paragraphs [d] and [e] of Rule .0401 of this 
Subchapter. 

(b) The term of each loan shall not exceed 120 
months. 

Statutory Authority G.S. 143-215.94P. 

.0403 ADDITIONAL CONDITIONS 

(a) I oans made m accordance with this Sub- 
chapter mav be for the full amount or anv part 
of the cost of the upgrade or replacement. 

(bi Based on borrower's financial ability and 
in accordance with generally accepted banking 
standards, personal guaranties mav be required 
from borrower, spouse, and other owners of the 
borrower s busines 

(c) Based on borrower's financial ability and in 



accordance with generally accepted banking 
standards, sufficient collateral to secure the loan 
mav be required. 

id) Anv subsequent owner of the business or 
commercial petroleum underground storage 
tanks, mav applv to assume the outstanding loan. 
A bank may authorize an assumption by a sub- 



sequent owner only in accordance with generally 
accepted prevailing standards commonly used by 
banks for assumptions of commercial loans. 

Statutory Authority G.S. 143-215.94P. 

.0404 FUNDING OF LOAN 

(a) Following approval of the loan, loan checks 
will be made payable to the borrower and the 
contractor(s) performing the work after the fol- 
lowing is provided to the Bank: 

( 1) A completed copy of "Notification For 
All Underground Storage Tanks ( New & 
Upgraded)" (Form G\V U'ST-8) stating 



(2) 



all work was completed in accordance 
with technical requirements of 5A 
NCAC 2N. This form is available from 
the Department; and 
C opies of itemized invoices. 



(b) Loan commitments shall be made for peri- 
ods u£ to six months. 



Statutory Authority 
143-2I5.94T. 



G.S. 



143-2I5.94P; 



***************** 



l\otice is hereby given in accordance with G.S. 
I50B-2/.2 that the Environmental Management 
Commission intends to amend rulefsj cited as 
15A SCAC 2D .0/03 - .0104, .0401. .0521, .0524 
- .0525, .0530, .0532; 211 .0603, .0607, .0609. 

1 he proposed effective date of this action is Oc- 
tober 1. 1992. 

1 he public hearing will be conducted at 7:05 
p.m. on July 30, 1992 at the Groundjloor Hearing 
Room, Archdale Building, 5/2 North Salisbury- 
Street, Raleigh, North Carolina. 

lXeason for Proposed Actions: To cotrect ad- 
dress and department name, to correct and update 
references, to clarify incorporation by reference, 
to use defined terms, to clarify that emissions from 
both sources and facilities shall not cause an am- 
bient standard to be exceeded, and to add new 
source performance standards. 



ana in ^ 

inking C_ omment Procedures: All persons interested in 

these matters are invited to attend the public 
hearing. Any person desiring to comment for 
more than three minutes is requested to submit a 
written statement for inclusion in the record of 
proceedings at the public hearing. The hearing 
officer may limit oral presentation lengths to five 



S30 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



minutes if many people want to speak. The record 
of proceedings will remain open until August 29, 
J 992, to receive additional written statements. 
To be included, the statement must be received by 
the Department by August 29, 1992. 

Comments should be sent to and additional infor- 
mation concerning the hearing or the proposals 
may be obtained by contacting: 

Mr. Thomas C. Allen 

Division of Environmental Management 

P.O. Box 29535 

Raleigh, North Carolina 27626-0535 

(919) 733-/489 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2D - AIR POLLUTION 
CONTROL REQUIREMENTS 

SECTION .0100 - DEFINITIONS AND 
REFERENCES 

.0103 COPIES OF REFERENCED FEDERAL 
REGULATIONS 

(a) Copies of applicable Code of Federal Reg- 
ulations sections referred to in this Subchapter 
are available for public inspection at Department 
of Environment, Health, and Natural Resources 
regional offices. They are: 

(1) Asheville Regional Office, Interchange 
Building, 59 Woodfin Place, Asheville, 
North Carolina 28801; 

(2) Winston-Salem Regional Office, Suite 100, 
8025 North Point" Boulevard, Winston- 
Salem, North Carolina 27106; 

(3) Mooresville Regional Office, 919 North 
Main Street, Mooresville, North Carolina 
28115; 

(4) Raleigh Regional Office, 3800 Barrett 
Drive, Post Office Box 27687, Raleigh, 
North Carolina 27611; 

(5) Fayetteville Regional Office, Wachovia 
Building, Suite 714, Fayetteville, North 
Carolina 28301; 

(6) Washington Regional Office, 1424 
Carolina Avenue, Farish Building, 
Washington, North Carolina 27889; 

(7) Wilmington Regional Office, 243$ 
Wrightsvillo Avenue, 127 Cardinal Drive 
Extension, Wilmington, North Carolina 
28103. 2S405. 

(b) Copies of such r e gulations rules 
made at these regional offices for 



.0104 INCORPORATION BY REFERENCE 

(a) Anywhere there is a reference to rules con- 



can be 
ten cents 



tained in the Code of Federal Regulations (CFR) 
in this Subchapter, those rules are incorporated 
by reference. 

(b) (a) The Code of Federal Regulations 
adopted incorporated by reference in this Sub- 
chapter shall automatically include any later 
amendments thereto unless a specific rule speci- 
fies otherwise, as allowed by &&r 150B 1 1(c) 
with the following oxcoptiono: 

(44 Now categories ef sources m 40 CFR Rart 
60 a**4 64- fof which Hew- Dourco perform 
anco standards e* national omission 
standards fof hazardous ai# pollutants 
have boon promulgatod by EPA; 
(-3} 44*e Codo »f Federal Regulations when 
referenced m Rules .0530, .0531, a«4 
SSH&f tbis Subchapt e r. 
fb) N e w categories e^ sources fo 44 CFR Rart 
60 »«4 64- fof which Hew source performance 
standards ef national omission standards fof 
hazardous aif pollutants have boon promulgated 
by EPA, tf a«4 whon adopted, shall be adopted 
as part t»f Rule .0534 ef .0525 t»f tbis Subchapter 
using ftae making procedures. 
fe) The version t»f the referenced Codo &f bod 
eral- Regulations m R-*4es .053 1 ), .0531, af>4 44403 
*4 t+rt-r Subchapter is tbat- as t4 January 4-r 1989. 

(c) The Code of Federal Regulations may be 
purchased from the Superintendent of Docu- 
ments, P.O. Box 371954, Pittsburgh. PA 15250. 
"1 he cost of the referenced documents are as fol- 
lows: 

40 CFR Parts 1 to 51: twenty-seven dol- 



LLi 
121 

£51 



lars ($27.00). 

40 CFR Part 52: twenty-eight dollars 
($28.00). 

4(1 CFR Parts 53 to 60: thirty-one dollars 
($31.00). 



40 CFR Parts 61 to 80: fourteen dollars 
($14.00). 

40 CFR Parts 260 to 269: twentv-two 
dollars ($22.00). 



($0.10) per page. 



Statutory Authority G.S. 143-215.3; 150B-I4. 



"1'hese prices are January 1992 prices. 

Statutory Authority G.S. 150B-2/.6. 

SECTION .0400 - AMBIENT AIR QUALITY 
STANDARDS 

.0401 PI RPOSE 

(a) The purpose of the ambient air quality 
standards set out in this Section is to establish 
certain maximum limits on parameters of air 
quality considered desirable for the preservation 
and enhancement of the quality of the state's air 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



831 



PROPOSED RULES 



resources. Furthermore, the objective of the 
Commission, consistent with the North Carolina 
Air Pollution Control Law, shall be to prevent 
significant deterioration in ambient air quality in 
any substantial portion of the state where existing 
air quality is better than the standards. An at- 
mosphere in which these standards are not ex- 
ceeded should provide for the protection of the 
public health, plant and animal life, and property. 

(b) Ground level concentrations of pollutants 
will be determined by sampling at fixed locations 
in areas beyond the premises on which a source 
is located. The standards are applicable at each 
such sampling location in the state. 

(c) No facility or source of air pollution shall 
cause any ambient air quality standard in this 
Section to be exceeded or contribute to a vio- 
lation of any ambient air quality standard in this 
Section except as allowed by Rules .0531 or 
.0532 of this Subchapter. 



Statutory Authority 
143-215.101 '(a) (3). 



G.S. 143-215.3(a)(l); 



SECTION .0500 - EMISSION CONTROL 
STANDARDS 

.0521 CONTROL OF VISIBLE EMISSIONS 

(a) Purpose. The intent of this Regulation 
Rule is to promulgate rules pertaining to the 
prevention, abatement, and control of emissions 
generated from fuel burning operations and other 
industrial processes where an emission can be 
reasonably expected to occur, except during 
startups made in accordance with procedures ap- 
proved by the Commission. 

(b) Scope. This Regulation Rule shall apply 
to all fuel burning installations sources and to 
other processes that may have a visible emission. 
However, sources subject to an emission stand- 
ard in R e gulation Rule .0508, .0524 or .0525 of 
this Section shall meet that standard. 

(c) For installations sources existing as of July 
1, 1971, visible emissions shall not be more than 
40 percent opacity when averaged over a six- 
minute period except that six-minute periods av- 
eraging not more than 90 percent opacity may 
occur not more than once in any hour nor more 
than four times in any 24-hour period. 

(d) For installations sources established after 
July 1, 1971, visible emissions shall not be more 
than 20 percent opacity when averaged over a 
six-minute period except that six-minute periods 
averaging not more than 87 percent opacity may 
occur not more than once in any hour nor more 
than four times in any 24-hour period. 

(e) Where the presence of uncombined water 
is the onlv reason for failure of an emission to 



meet the limitations of Paragraph (c) or (d) of 
this Piogulation, Rule, those requirements shall 
not apply. 

(f) Exception from Opacity Standard in Para- 
graph (d) of this Rule. Sources Installations es- 
tablished after July 1, 1971, may, subject to the 
following conditions, receive an exception from 
the opacity standard contained in Paragraph (d) 
of this Piegulation. Rule. These installations 



sources may produce emissions up to those al 
lowed by Paragraph (c) of this Rule if: 

( 1 ) The installation owner or operator of the 
source demonstrates compliance with ap- 
plicable particulate mass emissions stand- 
ards; and 

(2) The installation owner or operator of the 
source submits necessary data to show 
that emissions up to those allowed by 
Paragraph (c) of this Rule will not violate 
any national ambient air quality standard. 

The burden of proving these conditions is on the 
installation owner or operator of the source and 
shall be approached in the following manner. 
A» installation The owner or operator of a 
source seeking an exception shall make applica- 
tion to the Director requesting this modification 
in its permit. The applicant shall submit the re- 
sults of a source test within 90 days of applica- 
tion. Source testing shall be by the appropriate 
procedure as designated by regulation. rule. 
During this same period the applicant shall sub- 
mit data necessary to determine that emissions 
up to those allowed by Paragraph (c) of this Rule 
will not contravene ambient air quality standards. 
This evidence shall include, as a minimum, an 
inventory of past and projected emissions from 
the facility. In its review of ambient air quality, 
the Division of Environmental Management may 
require additional information that it considers 
necessary to assess the resulting ambient air 
quality. If the applicant can thus show that it 
will be in compliance both with particulate mass 
emissions standards and ambient air quality 
standards, his permit shall be modified to allow 
emissions up to those allowed by Paragraph (c) 
of this Rule. 



Statutory A uthority 
143-215. 107(a)(5).' 



G.S. 143-215.3(a)(l); 



.0524 NEW SOI RCE PERFORMANCE 
STANDARDS 

(a) Sources of the following types when subject 
to new source performance standards 
promulgated in 40 CFR Part 60 shall comply 
with the emission standards, monitoring and re- 
porting requirements, maintenance requirements, 
notification and record keeping requirements, 



852 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



performance test requirements, test method and 
procedure provisions, and any other provisions, 
as required therein, rather than with any 
otherwise-applicable regulation rule in this Sec- 
tion or Section .0900 of this Subchapter which 
would be in conflict therewith: 

(1) fossil fuel-fired steam generators (40 CFR 
60.1 to 60.49, Subpart D); 

(2) incinerators (40 CFR 60.1 to 60.39 and 
60.50 to 60.59, Subpart E); 

(3) portland cement plants (40 CFR 60.1 to 
60.39 and 60.60 to 60.69, Subpart F); 

(4) nitric acid plants (40 CFR 60.1 to 60.39 
and 60.70 to 60.79, Subpart G); 

(5) sulfuric acid plants (40 CFR 60.1 to 60.39 
and 60.80 to 60.89, Subpart H); 

(6) asphalt concrete plants (40 CFR 60.1 to 
60.39 and 60.90 to 60.99, Subpart I); 

(7) petroleum refineries (40 CFR 60.1 to 
60.39 and 60.100 to 60.109, Subpart J); 

(8) storage vessels for petroleum liquids for 
which construction, reconstruction, or 
modification commenced after June 11, 
1973, and prior to May 19, 1978 (40 CFR 
60.1 to 60.39 and 60.110 to 60.119, Sub- 
part K); 

(9) secondary lead smelters (40 CFR 60.1 to 
60.39 and 60.120 to 60.129, Subpart L); 

(10) secondary brass and bronze ingot pro- 
duction plants (40 CFR 60.1 to 60.39 and 
60.130 to 60.139, Subpart M); 

(11) iron and steel plants (40 CFR 60.1 to 
60.39 and 60.140 to 60.149, Subpart N); 

(12) sewage treatment plants (40 CFR 60.1 to 
60.39 and 60.150 to 60.159, Subpart O); 

(13) phosphate fertilizer industry: wet process 
phosphoric acid plants (40 CFR 60.1 to 
60.39 and 60.200 to 60.209, Subpart T); 

(14) phosphate fertilizer industry: 
superphosphoric acid plants (40 CFR 60. 1 
to 60.39 and 60.210 to 60.219, Subpart 

U); 

(15) phosphate fertilizer industry: 
diammonium phosphate plants (40 CFR 
60.1 to 60.39 and 60.220 to 60.229, Sub- 
part V); 

(16) phosphate fertilizer industry: triple 
superphosphate plants (40 CFR 60. 1 to 
60.39 and 60.230 to 60.239, Subpart W); 

(17) phosphate fertilizer industry: granular 
triple superphosphate storage facilities (40 
CFR 60.1 to 60.39 and 60.240 to 60.249, 
Subpart X); 

(18) steel industry: electric arc furnaces (40 
CFR 60.1 to 60.39 and 60.270 to 60.279, 
Subpart AA); 

(19) coal preparation plants (40 CFR 60.1 to 
60.39 and 60.250 to 60.259, Subpart Y); 



(20) primary copper smelters (40 CFR 60.1 
to 60.39 and 60.160 to 60.169, Subpart 
P); 

(21) primary zinc smelters (40 CFR 60.1 to 
60.39 and 60.170 to 60.179, Subpart Q); 

(22) primary lead smelters (40 CFR 60.1 to 
60.39 and 60.180 to 60.189, Subpart R); 

(23) primary aluminum reduction plants (40 
CFR 60.1 to 60.39 and 60.190 to 60.199, 
Subpart S); 

(24) ferroalloy production facilities (40 CFR 
60.1 to 60.39 and 60.260 to 60.269, Sub- 
part Z); 

(25) kraft pulp mills (40 CFR 60.1 to 60.39 
and 60.280 to 60.289, Subpart BB); 

(26) grain elevators (40 CFR 60.1 to 60.39 
and 60.300 to 60.309, Subpart DD); 

(27) lime manufacturing plants (40 CFR 60.1 
to 60.39 and 60.340 to 60.349, Subpart 
HH); 

(28) stationary gas turbines (40 CFR 60.1 to 
60.39 and 60.330 to 60.339, Subpart GG); 

(29) electric utility steam generating units (40 
CFR 60.1 to 60.39 and 40 CFR 60.40a to 
60.49a, Subpart Da); 

(30) storage vessels for petroleum liquids, for 
which construction, reconstruction, or 
modification commenced after May 18, 
1978 and prior to July 23, 1984 (40 CFR 
60.1 to 60.39 and 40 CFR 60.110a to 
60.119a, Subpart Ka); 

(31) glass manufacturing plants (40 CFR 60.1 
to 60.39 and 40 CFR 60.290 to 60.299, 
Subpart CC); 

(32) lead-acid batten - manufacturing (40 CFR 
60.1 to 60.39 and 40 CFR 60.370 to 
60.379, Subpart KK); 

(33) automobile and light duty truck surface 
coating operations (40 CFR 60.1 to 60.39 
and 40 CFR 60.390 to 60.399, Subpart 
MM); 

(34) phosphate rock plants (40 CFR 60.1 to 
60.39 and 40 CFR 60.400 to 60.409, Sub- 
part NN); 

(35) ammonium sulfate manufacturing (40 
CFR 60.1 to 60.39 and 40 CFR 60.420 to 
60.429, Subpart PP); 

(36) surface coating of metal furniture (40 
CFR 60.1 to 60.39 and CFR 60.310 to 
60.319, Subpart FF); 

(37) graphic arts industry: publication 
rotogravure printing (40 CFR 60.1 to 
60.39 and 40 CFR 60.430 to 60.439, Sub- 
part QQ); 

(38) industrial surface coating: large appli- 
ances (40 CFR 60.1 to 60.39 and 40 CFR 
60.450 to 60.459, Subpart SS); 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



833 



PROPOSED RULES 



(39) metal coil surface coating (40 CFR 60.1 
to 60.39 and 40 CFR 60.460 to 60.469, 
Subpart TT); 

(40) beverage can surface coating industry (40 
CFR 60.1 to 60.39 and 40 CFR 60.490 to 
60.499, Subpart WW); 

(41) asphalt processing and asphalt roofing 
manufacture (40 CFR 60.1 to 60.39 and 
40 CFR 60.470 to 60.479, Subpart UU); 

(42) bulk gasoline terminals (40 CFR 60. 1 to 
60.39 and 40 CFR 60.500 to 60.509, Sub- 
part XX); 

(43) metallic mineral processing plants (40 
CFR 60.1 to 60.39 and 40 CFR 60.380 to 
60.389, Subpart LL); 

(44) pressure sensitive tape and label surface 
coating operations (40 CFR 60.1 to 60.39 
and 40 CFR 60.440 to 60.449, Subpart 
RR); 

(45) equipment leaks of VOC in the synthetic 
organic chemicals manufacturing industry 
(40 CFR 60.1 to 60.39 and 40 CFR 
60.480 to 60.489, Subpart W); 

(46) equipment leaks of VOC in petroleum 
refineries (40 -CFR 60.1 to 60.39 and 40 
CFR 60.590 to 60.599, Subpart GGG); 

(47) synthetic fiber production facilities (40 
CFR 60.1 to 60.39 and 40 CFR 60.600 to 
60.609, Subpart HHH); 

(48) flexible vinyl and urethane coating and 
printing (40 CFR 60.1 to 60.39 and 40 
CFR 60.580 to 60.589, Subpart FFF); 

(49) petroleum dry cleaners (40 CFR 60.1 to 
60.39 and 60.620 to 60.629, Subpart JJJ); 

(50) onshore natural gas processing plants: 
equipment leaks of volatile organic com- 
pounds (40 CFR 60. 1 to 60.39 and 60.630 
to 60.639, Subpart KKK); 

(51) wool fiberglass insulation manufacturing 
(40 CFR 60.1 to 60.39 and 60.680 to 
60.689, Subpart PPP); 

(52) nonmetallic mineral processing plants (40 
CFR 60.1 to 60.39 and 60.670 to 60.679, 
Subpart OOO); 

(53) steel plants: electric arc furnaces and 
argon-oxygen decarburization vessels 
constructed after August 17, 1983 (40 
CFR 60.1 to 60.39 and 60.270a to 
60.279a, Subpart AAa); 

(54) onshore natural gas processing: SO(2) 
emissions (40 CFR 60.1 to 60.39 and 
60.640 to 60.M9, Subpart LLL); 

(55) basic oxygen process steelmaking facili- 
ties for which construction is commenced 
after January 20, 1983: (40 CFR 60.1 to 
60.39 and 60.140a to 60.149a, Subpart 
Na); 



(56) industrial-commercial-institutional steam 
generating units (40 CFR 60.1 to 60.39 
and 60.40b to 60.49b, Subpart Db); 

(57) volatile organic liquid storage vessels 
(including petroleum liquid storage ves- 
sels) for which construction, recon- 
struction, or modification commenced 
after July 23, 1984 (40 CFR 60.1 to 60.39 
and 40 CFR 60.110b to 60.119b, Subpart 
Kb); 

rubber tire manufacturing industry (40 
CFR 60.1 to 60.39 and 40 CFR 60.540 to 
60.549, Subpart BBB); 
industrial surface coating: surface coating 
of plastic parts for business machines (40 
CFR 60.1 to 60.39 and 40 CFR 60.720 to 
60.729, Subpart TTT); 

magnetic tape coating facilities (40 CFR 
60.1 to 60.39 and 40 CFR 60.710 to 
60.719, Subpart SSS); 

volatile organic compound emissions 
from petroleum refinery wastewater sys- 
tems (40 CFR 60.1 to 60.34 and 40 CFR 
60.690 to 60.699, Subpart QQQ); 

volatile organic compound emissions 
from the synthetic organic chemical man- 
ufacturing industry air oxidation unit 
processes (40 CFR 60.1 to 60.34 and 40 
CFR 60.610 to 60.618, Subpart III); 

volatile organic compound emissions 
from synthetic organic chemical manufac- 
turing industry distillation operations (40 
CFR 60.1 to 60.34 and 40 CFR 60.660 to 
60.668, Subpart NNN); 

polymeric coating of supporting 
substrates facilities (40 CFR 60.1 to 60.34 
and 40 CFR 60.740 to 60.748, Subpart 
VW); 

small industnal-commercial-institutional 
steam generating units (40 CFR 60.1 to 
60.34 and 40 CFR 60.40c to 60.48c, Sub- 
part Dc); 
(66) municipal waste combustors (40 CFR 
60.1 to 60.34 and 40 CFR 60.50a to 
60.59a, Subpart Fa); 

volatile organic emissions from the 
polvmer manufacturing industry (40 CFR 
60.1 to 60.34 and 40 CFR 60.560 to 
60.566 except 40 CI R 60. 5^2- 2(c), Sub- 
part DDD). 
(b) .Ail requests, reports, applications, submit- 
tals, and other communications to the adminis- 
trator required under Paragraph (a) of this 
Regulation Rule shall be submitted to the Di- 
rector of the Division of Environmental Man- 
agement rather than to the Environmental 
Protection Agency. 



(58) 



(59) 



(60) 



(61) 



(62) 



(63) 



(64) 



(65) 



(67 



834 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



(c) In the application of this Regulation, Rule, 
definitions contained in 40 CFR Part 60 shall 
apply rather than those of Section .0100 of this 
Subchapter when conflict exists. 

(d) Paragraphs (a) and (b) of Rule .0601 of 
Subchapter 2H of this Chapter are not applicable 
to any source to which this Regulation applies. 
The source shall apply for and receive a permit 
as required in Paragraph (c) of Rule .0601 of 
Subchapter 2H of this Chapter. 

(e) The Code of Federal Regulations cited in 
this Rule are incorporated by reference and shall 
automatically include any later amendments 



thereto except for categories of sources not refer- 
enced in Paragraph (a) of this Rule. Categories 
of sources not referenced in Paragraph (a) of this 
Rule for which B PA has promulgated new- 
source performance standards in 40 C F R Part 60, 
if and when incorporated into this Rule, shall be 
incorporated using rule-making procedures. 

Statutory Authority G.S. l43-2153(a)(l ); 

143-215. 107(a)(5); 150B-2I.6. 



.0525 NATIONAL EMISSION STANDARDS 
FOR HAZARDOUS AIR POLLUTANTS 

(a) Sources emitting pollutants of the following 
types when subject to national emission stand- 
ards for hazardous air pollutants promulgated in 
40 CFR Part 61 shall comply with emission 
standards, monitoring and reporting require- 
ments, maintenance requirements, notification 
and record keeping requirements, performance 
test requirements, test method and procedure 
provisions, and any other provisions, as required 
therein, rather than with any otherwise- 
applicable regulation rule in this Section or Sec- 
tion .0900 of this Subchapter which would be in 
conflict therewith: 

(1) asbestos (40 CFR 61.01 to 61.19 and 
61.140 to UrJrS&r 61.159. Subpart M, with 
the exception named in 40 CFR 61.157); 

(2) beryllium (40 CFR 61.01 to 61.19 and 
61.30 to 61.39, Subpart C); 

(3) beryllium from rocket motor firing (40 
CFR 61.01 to 61.19 and 61.40 to 61.49, 
Subpart D); 

(4) mercury (40 CFR 61.01 to 61.19 and 
61.50 to 61.59, Subpart E); 

(5) vinyl chloride (40 CFR 61.01 to 61. 19 and 
61.60 to 61.71, Subpart F); 

(6) equipment leaks (fugitive emission 
sources) of benzene (40 CFR 61.01 to 
61.19 and 61.1 10 to 61.119, Subpart J); 

(7) equipment leaks (fugitive emission 
sources) (of volatile hazardous air 
pollutants) (40 CFR 61.01 to 61.19 and 
61.240 to 61.249, Subpart V); 



(8) inorganic arsenic emissions from glass 
manufacturing plants (40 CFR 61.01 to 
61.19 and 61.160 to 61.169, Subpart N); 

(9) inorganic arsenic emissions from primary 
copper smelters (40 CFR 61.01 to 61.19 
and 61.170 to 61.179, Subpart O); 

(10) inorganic arsenic emissions from arsenic 
trioxide and metallic arsenic production 
facilities (40 CFR 61.01 to 61.19 and 
61.180 to 61.186, Subpart P); 

(11) benzene emissions from benzene transfer 
operations (40 CFR 61.01 to 61.19 and 
61.300 to 61.306, Subpart BB); 

(12) benzene waste operations (40 CFR 61.01 
to 61.19 and 61.340 to 61.358, Subpart 
FF); 

(13) benzene emissions from coke by-product 
recovery plants (40 CFR 61.01 to 61.19 
and 61.130 to 61.139, Subpart L); 

(14) benzene emissions from benzene storage 
vessels (40 CFR 61.01 to 61.19 and 61.270 
to 61.277 except 61.273, Subpart Y). 

(b) All requests, reports, applications, submit- 
tals, and other communications to the adminis- 
trator required under Paragraph (a) of this 
R e gulation Rule shall be submitted to the Di- 
rector of the Division of Environmental Man- 
agement rather than to the Environmental 
Protection Agency; except that all such reports, 
applications, submittals, and other communi- 
cations to the administrator required by 40 CFR 
61.145 61. M6, a«4 61. M7, shall be submitted to 
the Director, Division of Epidemiology. 

(c) In the application of this Regulation, Rule, 
definitions contained in 40 CFR Part 61 shall 
apply rather than those of Section .0100 of this 
Subchapter when conflict exists. 

(d) Paragraphs (a) and (b) of Rule 15A NCAC 
2H .0601 are not applicable to any source to 
which this Rule applies. The source shall apply 
for and receive a permit as required in Paragraph 
(c) of Rule 15A NCAC 2H .0601. 

(e) The Code of Federal Regulations cited in 
this Rule are incorporated by reference and shall 
automatically include any later amendments 
thereto except for categories of sources not refer- 
enced in Paragraph (a) of this Rule. Categories 
of sources not referenced in Paragraph (a) of this 
Rule for which I PA has promulgated national 
emission standards lor hazardous air pollutants 
in 40 CFR Part 61. if and when incorporated into 
this Rule, shall be incorporated using rule- 
making procedures. 

Statutory Authority G.S. 143-215.3(a)(l); 

143-215. 107(a)(5); 150B-21.6. 

.0530 PREVENTION OF SIGNIFICANT 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



S35 



PROPOSED RULES 



DETERIORATION 

(a) The purpose of the Regulation rule is to 
implement a program for the prevention of sig- 
nificant deterioration of air quality as required 
by 40 CFR 51.166 as amended October 17, 1988. 

(b) For the purposes of this Regulation Rule 
the definitions contained in 40 CFR 51.166(b) 
and 40 CFR 51.301 shall apply. The reasonable 
period specified in 40 CFR 51.166(b)(3)(E) shall 
be seven years. The limitation specified in 40 
CFR 51.166(b)(15)(ii) shall not apply. 

(c) All areas of the State shall be classified as 
Class II except that the following areas are Class 
I: 

( 1 ) Great Smoky Mountains National Park; 

(2) Joyce Kilmer Slickrock National 
Wilderness Area; 

(3) Linville Gorge National Wilderness Area; 

(4) Shining Rock National Wilderness Area; 

(5) Swariquarter National Wilderness Area. 

(d) Redesignations of areas to Class I or II may 
be submitted as state proposals to the Adminis- 
trator of the Environmental Protection Agency 
(EPA), if the requirements of 40 CFR 
51.166(g)(2) are met. Areas may be proposed to 
be redesignated as Class III, if the requirements 
of 40 CFR 51.166(g)(3) are met. Redesignations 
may not, however, be proposed which would vi- 
olate the restrictions of 40 CFR 51.166(e). 
Lands within the boundanes of Indian Reserva- 
tions may be redesignated only by appropriate 
Indian Governing Body. 

(e) In areas designated as Class I, II. or III, 
increases in pollutant concentration over the 
baseline concentration shall be limited to the 
values set forth in 40 CFR 51.166(c). However, 
concentration of the pollutant shall not exceed 
standards set forth in 40 CFR 51.166(d). 

(f) Concentrations attnbutable to the condi- 
tions described in 40 CFR 51.166(f)(1) shall be 
excluded in determining compliance with a max- 
imum allowable increase. However, the exclu- 
sions referred to in 40 CFR 51.166(f)(l)(i) or (ii) 
shall be limited to five years as described in 40 
CFR 51.166(f)(2). 

(g) Major stationary sources and major mod- 
ifications shall comply with the requirements 
contained in 40 CFR 51.166(1) and by extension 
in 40 CFR 51.166(j) through (o). The transition 
provisions allowed by 40 CFR 52.21 (i)(ll)(i) 
and (ii) and (m)(l)(vii) and (viii) are hereby 
adopted under this Regulation. Rule. The 
mmimum requirements desenbed in the portions 
of 40 CFR 51.166 referenced in this Paragraph 
are hereby adopted as the requirements to be 
used under this Regulation. Rule, except as oth- 
erwise provided in this Regulation. Rule. 
Wherever the language of the portions of 40 



CFR 51.166 referenced in this Paragraph speaks 
of the "plan," the requirements described therein 
shall apply to the source to which they pertain, 
except as otherwise provided in this Regulation, 
Rule. Whenever the portions of 40 CFR 51.166 
referenced in this Paragraph provide that the state 
plan may exempt or not apply certain require- 
ments in certain circumstances, those exemptions 
and provisions of nonapplicabihty are also 
hereby adopted under this Regulation. Rule. 
However, this provision shall not be interpreted 
so as to limit information that may be requested 
from the owner or operator by the Director as 
specified in 40 CFR 51.166(n)(2). 

(h) Paragraphs (a) and (b) of R-«le 15A NCAC 
2H .0601 are not applicable to any source to 
which this Rule applies. Sources to which this 
Rule applies shall apply for and receive a permit 
as required in Paragraph (c) of Rule - 15A NCAC 
2H .0601. 

(i) When a particular source or modification 
becomes a major stationary source or major 
modification solely by virtue of a relaxation in 
any enforceable limitation which was established 
after August 7. 1980, on the capacity of the 
source or modification to emit a pollutant, such 
as a restriction on hours of operation, then the 
provisions of this Regulation Rule shall apply to 
the source or modification as though con- 
struction had not yet begun on the source or 
modification. 

(j) Volatile organic compounds exempted from 
coverage in Subparagraph (c)(5) of Regulation 
Rule .0531 of this Section shall also be exempted 
when calculating source applicability and control 
requuements under this Regulation. Rule. 

(k) The degree of emission limitation required 
for control of any air pollutant under this R.ogu 
lution Rule shall not be affected in any manner 
by: 

(1) that amount of a stack height, not in ex- 
istence before December 31, 1970, that 
exceeds good engineering practice; or 

(2) any other dispersion technique not imple- 
mented before then. 

(1) A substitution or modification of a model 
as provided for in 40 CFR 51.166(1) shall be 
subject to public comment procedures in ac- 
cordance with the requirements of 40 CFR 
51.166(q). 

(m) Permits may be issued on the basis of in- 
novative control technology as set forth in 40 
CFR 51.166(s)(l) if the requirements of 40 CFR 
51.166(s)(2) have been met, subject to the con- 
dition of 40 CFR 51.166(s)(3), and with the al- 
lowance set forth m 40 CFR 51.166(s)(4). 

(n) If a source to which this Regulation Rule 
applies impacts an area designated Class I by re- 



836 



:S tXORTH CAROLLXA REGISTER July 15, 1992 



PROPOSED RULES 



quirements of 40 CFR 51.166(e), notice to EPA 
will be provided as set forth in 40 CFR 
51.166(p)(l). If the Federal Land Manager pre- 
sents a demonstration described in 40 CFR 
51.166(p)(3) during the public comment period 
or public hearing to the Director and if the Di- 
rector concurs with such demonstration, the per- 
mit application shall be denied. Permits may be 
issued on the basis that the requirements for 
variances as set forth in 40 CFR 51.166(p)(4), 
(p)(5) and (p)(7), or (p)(6) and (p)(7) have been 
satisfied. 

(o) A permit application subject to this Rcgu 
lation Rule shall be processed in accordance with 
the procedures and requirements of 40 CFR 
51. 166(q). Within 30 days of receipt of the ap- 
plication, applicants will be notified if the appli- 
cation is complete as to initial information 
submitted. Notwithstanding this determination, 
the 90-day period provided for the Commission 
to act by G.S. 143-2 1 5. 108(b) shall be considered 
to begin at the end of the period allowed for 
public comment, at the end of any public hearing 
held on the application, or when the applicant 
supplies information requested by the Director in 
answer to comments received during the com- 
ment period or at any public hearing, whichever 
is later. The Director shall notify the Adminis- 
trator of EPA of any application considered ap- 
proved by expiration of the 90 days; this 
notification shall be made within 10 working 
days of the date of expiration. If no permit 
action has been taken when 70 days of the 90-day 
period have expired, the Commission shall relin- 
quish its prevention of significant deterioration 
(PSD) authority to EPA for that permit. The 
Commission shall notify by letter the EPA Re- 
gional Administrator and the applicant when 70 
days have expired. EPA will then have respon- 
sibility for satisfying unmet PSD requirements, 
including permit issuance with appropriate con- 
ditions. The permit applicant must secure from 
the Commission a permit revised (if necessary) 
to contain conditions at least as stringent as those 
in the EPA permit, before beginning con- 
struction. Commencement of construction be- 
fore full PSD approval is obtained constitutes a 
violation of this Regulation. Rule. 

(p) Approval of an application with regard to 
the requirements of this Regulation Rule shall 
not relieve the owner or operator of the respon- 
sibility to comply fully with applicable provisions 
of other regulations rules of this Chapter and any 
other requirements under local, state, or federal 
law. 

(q) When a source or modification subject to 
this Regulation Rule may affect the visibility of 



a Class I area named in Paragraph (c) of this 
Regulation, Rule, the following procedures shall 
apply: 

(1) The Director shall provide written notifi- 
cation to all affected Federal Land Man- 
agers within 30 days of receiving the 
permit application or within 30 days of 
receiving advance notification of an appli- 
cation. The notification shall be at least 
30 days prior to the publication of notice 
for public comment on the application. 
The notification shall include a copy of 
all information relevant to the permit ap- 
plication including an analysis provided 
by the source of the potential impact of 
the proposed source on visibility. 

(2) The Director shall consider any analysis 
concerning visibility impairment per- 
formed by the Federal Land Manager if 
the analysis is received within 30 days of 
notification. If the Director finds that the 
analysis of the Federal Land Manager fails 
to demonstrate to his satisfaction that an 
adverse impact on visibility will result in 
the Class I area, the Director shall provide 
in the notice of public hearing on the ap- 
plication, an explanation of his decision 
or notice as to where the explanation can 
be obtained. 

(3) The Director may require monitoring of 
visibility in or around any Class I area by 
the proposed new source or modification 
when the visibility impact analysis indi- 
cates possible visibility impairment. 

(r) Revisions of the North Carolina State Im- 
plementation Plan for Air Quality shall comply 
with the requirements contained in 40 CpR 
51.166(a)(2). 

(s) The version of the Code of Federal Regu- 
lations incorporated in this Rule is that as of 
January _f 198 c >, and does not include any sub- 
sequent amendments or additions to the refer- 
enced material. 

Statutory Authority G.S. l43-215.3(a)(l); 
143-215. 107(a)(3); 143-215. 107(a)(5); 

143-215. 107(a)(7); 143-2 15.108(b); 150B-2I.6. 

.0531 SOURCES IN NONATTAINMENT AREAS 

(a) I his Rule applies to certain new major 
stationary sources and major modifications 
which are located in an area which is designated 
by the L.S. Environmental Protection Agency 
(EPA) to be a nonattainment area as of .May 1, 
1982. 

(b) For the purpose of this Rule the definitions 
contained in 40 CFR 51.165(a)(1) and 40 CFR 
51.301 shall apply. The reasonable period spec- 



7:S NORTH CAROLINA REGISTER July 15, 1992 



S3 7 



PROPOSED RULES 



iiied in 40 CFR 51.165(a)(l)(vi)(C)(l) shall be 

seven years, 
(c) This Rule is not applicable to: 

( 1 ) complex sources of air pollution that are 
regulated only under Section .0800 of this 
Subchapter and not under any other wg- 
ulation rule in this Subchapter; 

(2) emission of pollutants at the new major 
stationary source or major modification 
located in the nonattainment area which 
are pollutants other than the pollutant or 
pollutants for which the area is nonat- 
tainment. (A major stationary source or 
major modification that is major for vol- 
atile organic compounds is also major for 
ozone.); 

(3) emission of pollutants for which the 
source or modification is not major; 

(4 1 a new source or modification which qual- 
ifies for exemption under the provision of 
40 CFR 51.165(a)(4); and 

(5) emission of the following volatile organic 
compounds: 

(A) methane, 

(B) ethane, 

(C) trichlorofluoromethane (chlorofluoro- 
carbon 11). 

(D) dichlorodifluoromethane (chlorofluoro- 
carbon 12), 

(E) chlorodifluoromethane (chlorofluoro- 
carbon 22). 

(F) trifluoromethane (fluorocarbon 23), 

(G) trichlorotnfluoroethane (chlorofluoro- 
carbon 113), 

(H) dichlorotetrafluoroethane (chloro- 

fluorocarbon 114). 
(Il chloropentafluoroethane (chlorofluoro- 

carbon 1 15). 
(J) 1,1,1-tnchloroethane (methyl chloro- 
form). 
(K) dichloromethane (methylene chloride), 
(F) dichlorotrifluoroethane (hydrochloro- 

fluorocarbon 123), 
(M) tetrafluoroethane (hvdro fluorocarbon 

134a). 
(N) dichlorofluoroethane (hydrochloro- 

fluorocarbon 141b), and 
(O) chlorodifluoroethane (hydrochloro- 
fluorocarbon 142b). 
( d ) Paragraphs ( a I and I b ) of R-«k> 1 5A NCAC 
2H .0601 are not applicable to any source to 
which this Rule applies. The source shall apply 
for and receive a permit as required in Paragraph 
(c) of R-ak 15A NCAC 2H .0601. 
(ei To issue a permit to a source to which this 
Rule applies, the director shall determine that the 
source will meet the following requirements: 



(1) The source will emit the nonattainmen 
pollutant at a rate no more than the low- 
est achievable emission rate. 

(2) The owner or operator of the proposec 
new or modified source has demonstratec 
that all major stationary sources in th< 
State which are owned or operated by thi 
person (or any entity controlling, con 
trolled by, or under common control wit! 
this person) are subject to emission limi 
tations and are in compliance, or on ; 
schedule for compliance which is federal! 
enforceable or contained in a court decree 
with all applicable emission limitation; 
and standards of this Subchapter which 
EPA has authority to approve as element: 
of the North Carolina State Implementa 
tion Plan for Air Quality. 

(3) The source will obtain sufficient emission 
reductions of the nonattainment pollutant 
from other sources in the nonattainment 
area so that the emissions from the new 
source will be less than the emissions re 
ductions. The baseline for this emission 
offset shall be the actual emissions of the 
source from which offset credit is ob 
tained. Emission reductions must not in 
elude any reductions resulting from 
compliance (or scheduled compliance 
with applicable regulations rules in effect 
prior to the application. The difference 
between the emissions from the new 
source and the emission reductions must 
be sufficient to represent reasonable fur- 
ther progress toward attaining the Ambi 
ent Air Quality Standards. The emissions 
reduction credits must also conform to the 
provisions of 40 CFR 51.165(a)(3)(ii)(A) 
through (G). 

(4) The North Carolina State Implementation 
Plan for Air Quality is being carried out 
for the nonattainment area in which the 
proposed source is located. 

(f) When a particular source or modification 
becomes a major stationary source or major 
modification solely by virtue of a relaxation in 
any enforceable limitation established after Au- 
gust 7. 1 9S0. on the capacity of the source or 
modification to emit a pollutant, such as a re- 
striction on hours of operation, then the pro- 
visions of this Rule shall apply to the source or 
modification as though construction had not yet 
begun on the source or modification. 

(g) To issue a permit to a source of a nonat- 
tainment pollutant for which the state has dem- 
onstrated to the satisfaction of the Administrator 
of EPA that attainment is not possible in the area 
within the period prior to December 31. 1982. 



838 



:S NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



despite the implementation of all reasonably 
available measures, the Director shall determine, 
in addition to the other requirements of this 
Rule, that an analysis (produced by the permit 
applicant) of alternative sites, sizes, production 
processes, and environmental control techniques 
for source demonstrates that the benefits of the 
source significantly outweigh the environmental 
and social costs imposed as a result of its lo- 
cation, construction, or modification. 

(h) Approval of an application with regard to 
the requirements of this Rule shall not relieve the 
owner or operator of the responsibility to comply 
fully with applicable provisions of other regu 
lations rules of this Chapter and any other re- 
quirements under local, state, or federal law. 

(i) When a source or modification subject to 
this Rule may affect the visibility of a Class I area 
named in Paragraph (c) of Rule .0530 of this 
Section, the following procedures shall be fol- 
lowed: 

(1) The owner or operator of the source shall 
provide an analysis of the impairment to 
visibility that would occur as a result of 
the source or modification and general 
commercial, industrial and other growth 
associated with the source or modifica- 
tion. 

(2) The Director shall provide written notifi- 
cation to all affected Federal Land Man- 
agers within 30 days of receiving the 
permit application or within 30 days of 
receiving advance notification of an appli- 
cation. The notification shall be at least 
30 days prior to the publication of the 
notice for public comment on the appli- 
cation. The notification shall include a 
copy of all information relevant to the 
permit application including an analysis 
provided by the source of the potential 
impact of the proposed source on visibil- 
ity. 

(3) The Director shall consider any analysis 
concerning visibility impairment per- 
formed by the Federal Land Manager if 
the analysis is received within 30 days of 
notification. If the Director fmds that the 
analysis of the Federal Land Manager fails 
to demonstrate to his satisfaction that an 
adverse impact on visibility will result in 
the Class I area, the Director shall provide 
in the notice of public hearing on the ap- 
plication, an explanation of his decision 
or notice as to where the explanation can 
be obtained. 

(4) The Director shall only issue permits to 
those sources whose emissions will be 
consistent with making reasonable 



progress towards the national goal of pre- 
venting any future, and remedying any 
existing, impairment of visibility in man- 
dator}' Class I areas when the impairment 
results from man-made air pollution. In 
making the decision to issue a permit, the 
Director shall consider the cost of com- 
pliance, the time necessary for compli- 
ance, the energy and nonair quality 
environmental impacts of compliance, 
and the useful life of the source. 
(5) The Director may require monitoring of 
visibility in or around any Class I area by 
the proposed new source or modification 
when the visibility impact analysis indi- 
cates possible visibility impairment. 
The requirements of this Paragraph shall not ap- 
ply to nonprofit health or nonprofit educational 
institutions. 

(j) The version of the Code of Federal Regu- 
lations incorporated in this Rule is that as of 
January _L 1989, and does not include any sub- 
sequent amendments or additions to the refer- 



enced material. 

Statutory Authority G.S. 143-21 5. 3 { a)\ 1 ); 
143-215. 107(a)(5); 143-215. 108(b); 150B-21.6. 

.0532 SOURCES CONTRIBUTING TO AN 
AMBIENT VIOLATION 

(a) This Regulation Rule applies to certain new 
major stationary sources and major modifica- 
tions which are located in an area which is des- 
ignated by the U.S. Environmental Protection 
Agency (EPA) to be an attainment or unclassifi- 
able area as of May 1, 1983, and which would 
contribute to a violation of a national ambient 
air quality standard but which would not cause 
a new violation. 

(b) For the purpose of tins Regulation Rule the 
definitions contained in Section II.A. of Appen- 
dix S of 40 CFR Part 51 shall apply. 

(c) The Regulation rule is not applicable to: 

( 1 ) complex sources of air pollution that are 
regulated only under Section .0800 of this 
Subchapter and not under any other Feg- 
ulation rule of this Subchapter; 

(2) emission of pollutants for which the area 
in which the new or modified source is 
located is designated as nonattainment; 

(3) emission of pollutants for which the 
source or modification is not major; 

(4) emission of pollutants other than sulfur 
dioxide, total suspended particulates, ni- 
trogen oxides, and carbon monoxide; 

(5) a new or modified source whose impact 
will increase not more than: 

(A) 1.0 ug m" 3 of SOt on an annual basis, 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



839 



PROPOSED RULES 



(Bj 5 ug/m" 3 of SO2 on a 24-hour basis, 

(C) 25 ug/m" 3 of SO2 on a 3-hour basis, 

(D) 1.0 ug/m" 3 of total suspended 
particulates on an annual basis. 

(E) 5 ug/m' 3 of total suspended particulates 
on a 24-hour basis, 

(F) 1.0 ug/m" 3 of NO2 on an annual basis, 

(G) 0.5 mg/m 3 of carbon monoxide on an 
8-hour basis; 

(H) 2 mg m 3 of carbon monoxide on a 

one-hour basis; 
(I) 1.0 ug/m" 3 of PM10 on an annual basis; 

or 
(J) 5 ug'm' 1 of PM10 on a 24-hour basis; 
at any locality that does not meet a national 
ambient air quality standard. 

(6) sources which are not major unless sec- 
ondary emissions are included in calculat- 
ing the potential to emit; 

(7) sources which are exempted by the pro- 
vision in Section II. F. of Appendix S of 
40 CFR Part 51; 

(8) temporary emission sources which will be 
relocated within two years; and 

(9) emissions resulting from the construction 
phase of the source. 

(d) Paragraphs (a) and (b) of R-«I* 15A NCAC 
2H .0601 are not applicable to any source to 
which this Rule applies. The source shall apply 
for and receive a permit as required in Paragraph 
(c) of R-«k> 15A NCAC 2H .0601. 

(e) To issue a permit to a new or modified 
source to which this Regulation Rule applies, the 
Director shall determine that the source will meet 
the following conditions: 

( 1 ) The sources will emit the nonattainment 
pollutant at a rate no more than the low- 
est achievable emission rate. 

(2) The owner or operator of the proposed 
new or modified source has demonstrated 
that all major stationary sources in the 
State which are owned or operated by this 
person (or any entity controlling, con- 
trolled by. or under common control with 
this person) are subject to emission limi- 
tations and are in compliance, or on a 
schedule for compliance which is federally 
enforceable or contained in a court decree, 
with all applicable emission limitations 
and standards of this Subchapter which 
EPA has authority to approve as elements 
of the North Carolina State Implementa- 
tion Plan for Air Quality. 

(3) The source will satisfy one of the following 
conditions: 

(A) The source will comply with Part (e)(3) 
irM of R e gulation Rule .0531 of this Sec- 



tion when the source is evaluated as if it 
were in the nonattainment area; or 
(B) The source will have an air quality off- 
set, i.e., the applicant will have caused an 
air quality improvement in the locality 
where the national ambient air quality 
standard is not met by causing reductions 
in impacts of other sources greater than 
any additional impact caused by the 
source for which the application is being 
made. The emissions reductions creating 
the air quality offset shall be placed as a 
condition in the permit for the source re- 
ducing emissions. The requirements of 
this Part may be partially waived if the 
source is a resource recovery facility 
burning municipal solid waste, the source 
must switch fuels due to lack of adequate 
fuel supplies, or the source is required to 
be modified as a result of EPA regulations 
and no exemption from such regulations 
is available and if: 

(i) the permit applicant demonstrates that 
it made its best efforts to obtain suffi- 
cient air quality offsets to comply with 
this Part; 
(ii) the applicant has secured all available 

air quality offsets; and 
(iii) the applicant will continue to seek 
the necessary air quality offsets and ap- 
ply them when they become available. 

(f) At such time that a particular source or 
modification becomes a major stationary source 
or major modification solely by virtue of a re- 
laxation in any enforceable limitation established 
after August 7, 1980, on the capacity of the 
source or modification to emit a pollutant, such 
as a restriction on hours of operation, then the 
provisions of this Regulation Rule shall apply to 
the source or modification as though con- 
struction had not yet begun on the source or 
modification. 

(g) The version of the Code of Federal Regu- 
lations incorporated in this Rule is that as of 
Januan _L 1989, and does not include any sub- 
sequent amendments or additions to the refer- 
enced material. 

Statutory Authority G.S. 143-215 J(a)( 1); 
143-2/5. 107(a)(5); 143-215. 108(b); 150B-21.6. 

SUBCHAPTER 2H - PROCEDURES FOR 
PERMITS: APPROVALS 

SECTION .0600 - AIR QUALITY PERMITS 

.0603 APPLICATIONS 

(a) Permit application shall be made in dupli- 
cate on official forms of the Director and shall 



840 



7:S NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



include plans and specifications giving all neces- 
sary data and information as required by the ap- 
plication form. These application forms shall be 
used: air contaminant sources— Form AQ-22, and 
complex sources-Form AQ-81. These forms 
may be obtained by writing to the address in 
Paragraph (b) of thus Rule. Whenever the infor- 
mation provided on these forms does not ade- 
quately describe the source and its air pollution 
abatement equipment, the Director may request 
that the applicant provide any other information 
that the Director considers necessary to evaluate 
the source and its air pollution abatement 
equipment. 

(b) A permit or permit renewal application 
shall be filed in writing with the Director, Divi- 
sion of Environmental Management, Depart 
mont t4 Natural Riviourei"j »«4 Community 
Development, PtOt 8e* 27hS7, Raloioh, Xt4t 
27611. P.O. Box 29535, Raleigh. North Carolina 
27626-0535. Application for permit renewal or 
ownership transfer may be by letter to the Di- 
rector, if no alteration or modification has been 
made to the originally permitted source. A 
non-refundable permit application processing fee 
shall accompany each application. The permit 
application processing fees are in Regulation 
Rule .0609 of this Section. Each permit or re- 
newal application is incomplete until the permit 
application processing fee is received. 

(c) Before acting on any permit application, the 
Director may request any information from an 
applicant and conduct any inquiry or investi- 
gation that he considers necessary 7 and require the 
submission of plans and specifications. 

(d) Before issuing anv permit for: 

(1) a source to which R-+4* 15A NCAC 2D 
.0530 or .0531 applies, 

(2) a source whose emission limitation is 
based on a good engineering practice stack 
height that exceeds the heiszht defined in 
15A NCAC 2D .0533(a)(4)(A), (B), or 
(Q, 

(3) a requirement for controls more stringent 
than the applicable emission standards in 
Section 15A NCAC 2D .0500 in accord- 
ance with R*4* 15A NCAC 2D .0501, or 

(4) any other source that may be designated 
by the Director, 

the information submitted by the owner or op- 
erator, as well as the agency's analysis of the ef- 
fect on ambient air quality, shall be made 
available for public inspection in at least one lo- 
cation in the region affected. This shall be ac- 
complished by publishing in the region affected 
a notice by prominent advertisement which shall 
provide a 30-day period for submittal of public 
comment and an opportunity for a public hear- 



ing request. Confidential material will be han- 
dled in accordance with G.S. 143-21 5.3(a)(2). 

(e) A public hearing shall be held before the 
issuance of any permit containing any one of 
these conditions: 

(1) any physical or operational limitation on 
the capacity of the source to emit a 
pollutant, including air pollution control 
equipment and restrictions on hours of 
operation or on the type or amount of 
material combusted, stored, or processed, 
when such limitations are necessary to 
assure that rouulutions rules in Section 
15A NCAC 2D .0900 do not apply in ac- 
cordance with R e uulationu 15A NCAC 
2D .0901 and .0902; 

(2) an allowance of controls different than the 
applicable emission standards in Section 
15A NCAC 2D .0900 in accordance with 
Regulation 15A NCAC 2D .0905; 

(3) an alternate compliance schedule 
promulgated in accordance with Ruqu 
k*e» 15A NCAC 2D .0910; 

(4) the quantity of solvent-borne ink that may 
be used by a printing unit or printing sys- 
tems in accordance with Regulation 15A 
NCAC 2D .0936; or 

(5) an allowance of a particulate emission rate 
of 0.08 grains per dry standard cubic foot 
for incinerators constructed before July 1, 
1987, in accordance with 15A NCAC "2D 
.1205(b)(2). 

The public hearing shall be preceded by a 30-day 
period of public notice during which the agency's 
analysis and draft permit shall be available for 
public inspection in the appropriate regional of- 
fice. If and when a permit containing these 
conditions is issued, it will become a part of the 
North Carolina State Implementation Plan for 
Air Quality (SIP) as an appendix available for 
inspection at Department of Environment, 
Health, and Natural Resources regional offices. 
The permit will be submitted to the L'.S. Envi- 
ronmental Protection Agency for inclusion as 
part of the federally approved state implementa- 
tion plan. 

(f) In a permit application for an alternative 
mix of controls under 15A NCAC 2D .0501(f), 
the owner or operator of the facility shall dem- 
onstrate to the satisfaction of the Director that 
the proposal is equivalent to the existing re- 
quirements of the SIP in total allowed emissions, 
enforceability, reliability, and environmental im- 
pact. 

( 1) With the exception stated in Subparagraph 
(2) of this Paragraph, a public hearing 
shall be held before any permit containing 
alternative emission limitations is issued. 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



S4I 



PROPOSED RULES 



The public hearing shall be preceded by a 
30-day period of public notice during 
which the agency's analysis and draft per- 
mit shall be available for public inspection 
and comment in the appropriate regional 
office. If and when a permit containing 
these conditions is issued, it will become 
a part of the SIP as an appendix available 
for inspection at the department's regional 
offices. Until the U.S. Environmental 
Protection Agency (EPA) approves the 
SIP revision embodying the permit con- 
taining an alternative mix of controls, the 
facility shall continue to meet the other- 
wise applicable existing SIP requirements. 
The revision will be approved by EPA on 
the basis of the revision's consistency with 
EPA's "Policy for Alternative Emission 
Reduction Options Within State Imple- 
mentation Plans" as promulgated in the 
Federal Register of December 11, 1979, 
pages 71780-71788, and subsequent 
rulings. 

The permit applicant(s) may choose to 
provide a written acknowledgment that 
the emission rate limitations or control 
techniques allowed under an alternative 
mix of controls involving only volatile 
organic compounds are fully enforceable 
by EPA as a part of the SIP and may be 
enforced pursuant to Section 304(a) of the 
federal Clean Air Act. The acknowledg- 
ment shall also bind the source owner's 
successors. If the acknowledgment is 
provided to the Director, the Director will 
promptly transmit to EPA a copy of the 
permit application. Before the Director 
issues the permit, there shall be a 30-day 
period of public notice during which the 
agency's analysis and draft permit shall be 
available for public inspection and com- 
ment m the appropriate regional office. 
If and when such permit is issued, the 
Director will promptly transmit a copy to 
EPA. The owner or operator of a source 



.0609 PERMIT FEES 



(2) 



located in a nonattainment area for ozone 
as designated by the Environmental Pro 
tection Agency may not initiate the use 
of this option after November 30, 1989 
he shall follow the procedures set out ir 
Subparagraph ( 1 ) of this Paragraph. 



Statutory Authority G.S. 
143-215.108; 143-215.109. 



143-2 1 5.3(a)(1), 



.0607 COPIES OF REFERENCED DOCUMENTS 

(a) Copies of applicable Code of Federal Reg- 
ulations sections referred to in this Section and 
the North Carolina State Implementation Plan 
for Air Quality appendix of conditioned permits 
are available for public inspection at Department 
of Environment, Health, and Natural Resources 
regional offices. They are 



Ml 



(3) 



(4) 



(5) 



(6) 



(7) 



Asheville Regional Office. Interchange 
Building, 59 Woodfin Place, Asheville 
North Carolina 28801; 
Winston-Salem Regional Office. Suite 100 
8025 North Point Boulevard, Winston- 
Salem, North Carolina 27106; 
Mooresville Regional Office, 919 North 
Main Street, Mooresville. North Carolina 
28115; 

Raleigh Regional Office, 3800 Barrett 
Drive, Post Office Box 27687, Raleigh. 
North Carolina 27611; 

Fayetteville Regional Office, Wachovia 
Building, Suite 714, FavetteviUe, North 
Carolina 28301; 

Washington Regional Office. 1424 
Carolina Avenue, Parish Building, 
Washington, North Carolina 27889; 

Wilmington Regional Office. 7225 
Wrighttivilli' Av e nu e . 127 Cardinal Drive 



Extension. Wilmington, North Carolina 
3&-U4^ 28405. 
(b) Copies of such regulations can be made at 
these regional offices for ten cents ($0.10) per 
page. 

Statuton 1 Authority G.S. 150B-14. 



(a) For the purposes of this R.ogulation. Rule, the following definitions apply: 

( 1 ) "Minor facility" means any plant site where the allowable emissions of each regulated pollutant 
under Subchapter 2D of this Title are each less than 100 tons per year, except a site that is only 
a complex source. 

(2) "Major facility" means any plant site where the allowable emissions of any one regulated 
pollutant under Subchapter 2D of this Title are 100 tons per year or more, except a site that is 
only a complex source. 

(3) "PSD facility" means a plant site having one or more sources subject to the prevention of sig- 
nificant deterioration requirements of R e gulation 15A NCAC 2D .0530 or a plant site applying 
for a permit for a major stationary source or a major modification subject to Regulation 15A 
NCAC 2D .0530. 



S42 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



(4) "NSPS source" means a source subject to a new source performance standard in Regulation 1 5A 
NCAC 2D .0524. 

(5) "NESHAP source" means a source subject to a national emission standard for hazardous air 
pollutants in Regulation 15A NCAC 2D .0525. 

(6) "Complex source" means a source requiring a permit under Section 15A NCAC 2D .0800. 

(7) "Allowable emissions" means the actual emissions that are permitted to occur if the source were 
to operate constantly under maximum permitted conditions. Sources may request permit con- 
ditions that limit emissions to less than regulation allowables or that restrict operations. If nei- 
ther a regulation rule nor a permit limiting emissions from a particular source specifies an 
emission rate, then the allowable emissions shall be the actual emissions that are expected to 
occur if the source were to operate constantly under maximum conditions allowed by the permit. 
When a new source is added to an existing facility, the allowable emissions for the facility shall 
be the sum of the new and existing sources. 

(b) The following fees shall be charged for processing an application for an air permit and for ad- 
ministering and monitoring compliance with the terms of an air permit: 



PERMIT APPLICATION 
PROCESSING FEE 



ANNUAL ADMINISTERING AND 
COMPLIANCE MONITORING FEE 



CATEGORY 



STANDARD 



SIMPLE 
RENEWAL 



STANDARD 



IN 
COMPLIANCE 



Minor facility 



$ 50 



$ 25 



$ 250 



$ 190 



Minor facility with 
an NSPS source 60 



35 



500 



380 



Major facility 
PSD facility 



100 
400 



75 

100 



850 640 

1,375 1,030 



Facility with a 
NESHAP source 



100 



75 



850 



640 



Complex source 



100 







850 



640 



If a facility or source belongs to more than one category, the fees shall be those of the applicable cate- 
gory with the highest fees. No fees are required to be paid under this Regulation Rule by a farmer who 
submits an application or receives a permit that pertains to his farming operations. If the total payment 
for fees required for all permits under G.S. 143-21 5.3(a)( lb) for any single facility will exceed seven 
thousand five hundred dollars ($7,500.00) per year, then the total for all these fees will be reduced for 
this facility so that the total payment is seven thousand five hundred dollars ($7,500.00) per year. 

(c) The standard permit application processing fee listed in Paragraph (b) of this Regulation Rule is 
required for technical changes such as changing the location of a source; adding additional emission 
sources, pollutants, or control equipment; or changing a permit condition such that a change in air 
pollutant emissions could result. A simple renewal permit application processing fee is required for 
permit renewals without technical changes. A twenty five dollar ($25.00) permit application processing 
fee is required for administrative changes such as ownership transfers, construction date changes, test 
date changes, or reporting procedure changes. No permit application processing fee is required for 
changes to an unexpired permit initiated by the Director to correct processing errors, to change permit 
conditions, or to implement new standards. 

(d) If a facility has been in full compliance with all applicable administrative, regulatory, and self- 
monitoring reporting requirements and permit conditions during the previous calendar year, the annual 
administering and compliance monitoring fee shall be that which is in the "Compliance Reduction 
Annual Administering and Compliance Monitonng Fee" column. A facility shall be considered to 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



843 



PROPOSED RULES 



have been in compliance during the previous calendar year if it has not been sent any Notices of 
Non-compliance or Notices of Violation during that calendar year. If a Notice of Non-compliance or 
a Notice of Violation was based on erroneous information, the Director may send a letter of correction 
to the permittee clearing the record for compliance purposes. If a Notice of Non-compliance or Notice 
of Violation is still in the process of being contested or appealed, the permit holder shall pay the in 
compliance fee. At the conclusion of the contest or appeal process the permit holder shall pay the 
difference between the standard fee and in compliance fee unless the notice is found to be erroneous. 

(e) If the actual emissions of each pollutant from a minor facility are no more than three tons during 
the previous calendar year, the permit holder need not pay the annual administering and compliance 
monitoring fee provided that actual emissions continue to be no more than three tons during the annual 
period for which the fee is being billed. 

(f) Payment of permit application processing fees and annual administering and compliance moni- 
toring fees shall be by check or money order made payable to the N.C. Department of Environment 



Health, and Natural Resources. aft4 Community Development. The payment should refer to the air 
permit application or permit number. 

(g) The payment of the permit application processing fee required by Paragraph (b) or (c) of this 
Regulation Rule shall accompany the permit, permit renewal, or permit modification application and 
is non-refundable. If the permit application processing fee is not paid when the application is filed, the 
application shall be considered incomplete until the fee is paid. 

(h) The initial annual administering and compliance monitoring fee shall be paid in accordance with 
Paragraph (m) of this Rule when a permit, modified permit, or renewed permit is issued for which a 
permit application processing fee specified in Paragraph (b) or (c) of this Papulation Rule has been 
paid. For complex sources only an initial annual administering and compliance monitoring fee needs 
to be paid; no subsequent annual administering and compliance monitoring fee is necessary for complex 
sources unless technical changes are made in the permit. 

(i) If a permit or permit modification results in changing the category in which a facility belongs, the 
next annual administering and compliance monitoring fee shall be paid for category in which the facility 
belongs after the permit or permit modification is issued. 

(j) Any permit holder claiming exemption under Paragraph (e) of this Rule shall certify to the Di- 
rector within 30 days after being billed that the actual emissions of each pollutant from the facility are 
no more than three tons during the previous calendar year. 

(k) A facility which has not begun operations or which has ceased all operations at a site will not be 
required to pay the next annual administering and compliance monitoring fee provided operations are 
not resumed during that annual period. Any resumed operations will necessitate the payment of the 
entire annual fee. A facility that is moved to a new site may receive credit for any unused portion of 
an annual administering and compliance monitoring fee if the permit for the old site is relinquished. 
Only one annual administrative and compliance monitoring fee needs to be paid annually for each 
permit . 

(1) A fee payer with multiple permits may arrange to consolidate the payment of annual administrative 
and compliance monitoring fees into one annual payment. 

(m) If, within 30 days after being billed, the permit holder fails to pay an annual administering and 
compliance monitoring fee or fails to certify an exemption under Paragraphs (e) and (j) or (k) of this 
Rule, the Director may initiate action to revoke the permit. 

(n) In order to avoid violation of the statutory limit that total permit fees collected in any year not 
exceed 30 percent of the total budget from all sources of environmental permitting and compliance 
programs, the Division shall in the fust half of each state fiscal year project revenues from all sources 
including fees for the next fiscal year. If this projection shows that the statutory limit will be exceeded, 
rulemaking shall be commenced in order to have an appropriately adjusted fee schedule which will 
avoid excessive revenue collection from permit fees. 



Statutory Authority G.S. 143-21 53(a)( 1 ),( la),( lb). 



****************** 



Commission intends to amend nde(s) cited as 
ISA XCAC 2D .0926 - .0927; 211 .0610. 



Ivotice is hereby given in accordance with G.S. 1 he proposed effective date of this action is \o- 
150B-2I .2 that the Environmental Management vember 1 . 1992. 



S44 7:8 NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



J he public hearing will be conducted at 7:00 
p.m. on July 30, 1992 at the Groundfloor Hearing 
Room, Archdale Building. 512 North Salisbury 
Street, Raleigh, N.C. 

JKeason for Proposed Actions: To adopt maxi- 
mum feasible control technology for bulk gasoline 
plants and bulk gasoline terminals and to exempt 
bulk gasoline plants and terminals from toxic air 
pollutant requirements. 

(comment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Any person desiring to comment for 
more than three minutes is requested to submit a 
written statement for inclusion in the record of 
proceedings at the public hearing. The hearing 
officer may limit oral presentation lengths to five 
minutes if many people want to speak. The record 
of proceedings will remain open until August 29, 
1992, to receive additional written statements. 
To be included, the statement must be received by 
the Department by August 29. 1992. 

Comments should be sent to and additional infor- 
mation concerning the hearing or the proposals 
may be obtained by contacting: 

Mr. Thomas C. Allen 

Dhision of Environmental Management 

P.O. Box 29535 

Raleigh, North Carolina 27626-0535 

(919) 733-I4S9 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 



SUBCHAPTER 
CONTROL 



»D - MR POLLUTION 
REQl IREMENTS 



SECTION .0900 - VOLATILE ORGANIC 
COMPOUNDS 

.0926 BULK GASOLINE PLANTS 

(a) For the purpose of this Regulation, Rule. 
the following definitions apply: 

(1 ) "Average daily throughput" means annual 

throughput of gasoline divided by 312 
days per year. 

(2) (-H "Bottom filling" means the filling of a 

tank truck or stationary- storage tank 
through an opening that is tlush with the 
tank bottom. 

(3) (3) "Bulk gasoline plant" means a gasoline 

storage and distribution facility which has 
an average daily throughput of less than 
20,000 gallons of gasoline and which usu- 
ally receives gasoline from bulk terminals 



by trailer transport, stores it in tanks, and 
subsequently dispenses it via account 
trucks to local farms, businesses, and ser- 
vice stations. 

(4) f4} "Bulk gasoline terminal" means a gas- 

oline storage facility which usually re- 
ceives gasoline from refineries primarily 
by pipeline, ship, or barge; and delivers 
gasoline to bulk gasoline plants or to 
commercial or retail accounts primarily 
by tank truck; and has an average daily 
throughput of more than 20,000 gallons 
of gasoline. 

(5) (4) "Gasoline" means any petroleum 
distillate having a Reid vapor pressure of 
four psia or greater. 

(6) "Incoming vapor balance system" means 
a combination of pipes or hoses which 
create a closed system between the vapor 
spaces of an unloading tank truck or 
trailer and a receiving stationary storage 
tank such that vapors displaced from the 
receiving stationary storage tank are 
transferred to the tank truck or trailer be- 
ing unloaded. 

(7) "Outgoing vapor balance system" means 
a combination of pipes or hoses which 
create a closed svstem between the vapor 
spaces of an unloading stationary storage 
tank and a receiving tank truck or trailer 
such that vapors displaced from the re- 
ceivins tank truck or trailer are transferred 



.tationarv storage tank being un- 



to the 
loaded. 

(8) (£) "Splash filling" means the tilling of a 

tank truck or stationary storage tank 
through a pipe or hose whose discharge 
opening is above the surface level of the 
liquid in the tank being filled. 

(9) f£f "Submerged tilling" means the tilling 
of a tank truck or stationary tank through 
a pipe or hose whose discharge opening 
is entirely submerged when the pipe 
normally used to withdraw liquid from the 
tank can no longer withdraw any liquid, 
or whose discharge opening is entirely 
submerged when the liquid level is six 
inches above the bottom of the tank. 

{3) "Vapor balance r . y; . tem" mean; , a comhi 
nation ei piper . t*f heses v . hich cr e at e et 
clo '.i ?d r . ;r -. u » m hetwe - on (4+e vapor r . pace - r . 
t+f e«* unloading hmk *«4 a- receiving tank 
; . uch t+wt- saporr . displaced from At* w- 
ceiving trtrtk *Fe traiT ' le - ned b± tht* tank 
b e ing unloaded. 
(b) This Regulation Rule applies to the un- 
loading, loading, and storage facilities of all bulk 
gasoline plants and of all tank trucks or trailers 



7:S NORTH CAROLINA REGISTER July 15, 1992 



845 



PROPOSED RULES 



plant and with one side oriented in a North' 



South direction. In all other counties the speci 



less fied limit on housing density is 11)0 residences per 



square mile. The housing density shall be deter 



mined by counting the number of residences us- 
ing aerial photographs or other suitable methods 
acceptable to the Director 
(f) The owner or operator of a bulk gasoline 



plant not subject to the outgoing vapor balance 



system requirements of Paragraph (d) or (e) of 
this Rule shall not load trucks or trailer s at such 
plants unless 

( 1) Equipment is available at the bulk gasoline 



ill 



plant to provide for submerge filling of 
each tank truck or trailer; or 

bach receiving tank truck or trailer is 
equipped for bottom filling 



(g) (44 With the exception stated t» Paragraph 
fe) ef this Regulation, the The owner or operator 
of a bulk gasoline plant, tank truck or trailer that 
is required to be equipped with a vapor balance 



delivering or receiving gasoline at bulk gasoline a square one mile on a side with the square cen 

plants except stationary storage tanks with ca- tered on the loading rack at the bulk gasoline 

pacitics less than 528 gallons. 

fe4 This Regulation dees wet apply tef 

/^^\ L^^^^^^^^^^^^^^^ ^^^^^^^^^^ L^ii^^^ U 1 t 1 i 

\ l J L!Ullll'IHlI T Ji\ \J 1 II CC I 111 1 1\ ." TTTTTT 

4kh* 42# gallon ' .: . ; e* 
(3) gasoline eelk- plants w4h ae av e rage daily 

gasoline through put net exceeding 1,000 

gallons, if aH stationary tanks a«4 tank 

t Ricks a*e e quipped fof subm e rg e d filling 

ef bottom filling. 
(c| (-44 With the exceptions stat e d i» Paragraph 
fef e£ 44s Regulation, 4te The owner or operator 
of a bulk gasoline plant shall not transfer gasoline 
to t*F from any stationary storage tanks after May 
_k 1993, unless each the unloading tank truck or 
trailer and the receiving stationary storage tank 
*s are equipped with a an incoming vapor balance 
system as described in Paragraph (g) of this 
Regulation and: Rule and 
(44 bach tank is equipped with a submerged fill 

(34 bach the receiving stationary storage tank is 
equipped with a till Line whose discharge opening 
is flush with the bottom of the tank. 

[dj (e) With the exceptions stated m Paragraph 
fef ef this R e gulation, the The owner or operator 
of a bulk gasoline plant tank truck h+ trailer with 
an average daily gasoline throughput of 4,1)00 
gallons or more shall not load e* unload tank 
trucks or trailers at a bulk gasoline such plant 
after May _b 1993, unless each the unloading 
stationary storage tank and the receiving tank 
truck or trailer »s are equipped with a an outgoing 
vapor balance system as described in Paragraph 
(g) of this Regulation and: Rule and 
(44 Equipment ts available at the bulk gasoline 
plant te- provide fof the submerged tilling ef each 
tank truck e* trailer; ©f 

(-34 bach the receiving tank truck or trailer is 
equipped for bottom tilling. 

(e) The owner or operator of a bulk gasoline 
plant with an average daily throughput of more 
than 2,500 gallons but less than 4.01)0 gallons lo- 
cated in an area with a housing density exceeding 
specified limits as described m this Paragraph 
shall not load any tank truck or trailer at such 
bulk gasoline plant after November _L 1996, un- 
less the unloading stationary storage tank and 



system pursuant to Paragraphs (c), (d), or (e) of 
this Rule shall not transfer gasoline between tank 
truck or trailer and stationary' storage tank unless 
(44 44te transfer is conducted i» accordance) 



with Paragraphs (44 a«4 (e4 ef 44s Regu 

lation 
(-44 (34 The vapor balance system is in good 

working order and is connected and oper 

ating; 
(2) (44 lank truck or trailer hatches are closed 

at all times during loading and unloading 

operations; and 



receiving tank truck or trailer are equipped with 
an outgoing vapor balance system as described in 
Paragraph (g) of this Rule and the receiving tank 
truck or trailer is equipped tor bottom tilling. In 
the counties of Alamance. Buncombe, Cabarrus, 
Catawba, Cumberland, Davidson, Durham, 
Forsyth. Gaston. Guilford, Mecklenburg, New 
1 lanover. Orange. Rowan, and Wake, the speci- 
fied limit on housing density is 50 residences in 



(3) f+4 The tank trucks' truck's or trailers' 
trailer's pressure/vacuum relief valves and 
hatch covers and the truck tanks or stor 
age tanks or associated vapor and liquid 
lines are vapor tight during loading or 
unloading. ae4 
(44 44»e pressure reli e f valves e» storage ves- 
sels afbi tank trucks e* trailers afe set te 
release at the highest possible pressur e 4» 
accordance with state e* local fife cod e s 
e* 4*e National I4fe Prevention Aoooci 
ation guidelines). 
(h) (§f Vapor balance systems required under 
Paragraphs [c^ (d), and (e) of this Regulation 
shall consist of the following major components 

(1) a vapor space connection on the stationary 
storage tank equipped with fittings which 
are vapor tight and will be immediately 
closed upon disconnection so as to pre- 
vent release of organic material; 

(2) a connecting pipe or hose equipped with 
fittings which are vapor tight and will be 
immediately closed upon disconnection so 



846 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



as to prevent release of organic material; 
and 
(3) a vapor space connection on the tank 
truck or trailer equipped with fittings 
which are vapor tight and will be imme- 
diately closed upon disconnection so as to 
prevent release of organic material, 
(i) The owner or operator of a bulk gasoline 
plant shall paint all tanks used for gasoline stor- 
age white or silver at the next scheduled painting 
or before November L_ 2002, whichever is 
sooner. 



(j] The pressure relief valves on tank trucks or 
trailers loading or unloading at bulk gasoline 
plants shall be set to release at the highest possi- 
ble pressure (in accordance with state or local fire 
codes or the National Fire Prevention Associ- 
ation guidelines). The pressure relief valves on 
stationary storage tanks shall be set at (L5 £>si for 
storage tanks placed in service on or after No- 
vember L 1992, and 0.25 psi for storage tanks 
existing before November _h 1992. 

(k) (h) No owner or operator of a bulk gasoline 
plant may permit gasoline to be spilled, discarded 
in sewers, stored in open containers, or handled 
in any other manner that would result in evapo- 
ration. 



Statutory A uthority 
143-215. 107(a)(5). 



G.S. 143-215.3(a)(l); 



.0927 BLLK GASOLINE TERMINALS 

(a) For the purpose of this Regulation, Rule, 
the following definitions apply: 

(1) "Bulk gasoline terminal" means: 

(A) breakout tanks of an intersta te oil 
pipeline facility; or 

(B) a gasoline storage facility which usually 
receives gasoline from refineries primarily 
by pipeline, ship, or barge; and delivers 
gasoline to bulk gasoline plants or to 
commercial or retail accounts primarily 
by tank truck: and has an average daily 
throughput of more than 20,000 gallons 
of gasoline. 

(2) "Gasoline" means a petroleum distillate 
having a Reid vapor pressure of four psia 
or greater. 

(b) This Regulation Rule applies to bulk gas- 
oline terminals and the appurtenant equipment 
necessary to load the tank truck or trailer com- 
partments. 

(c) Gasoline shall not be loaded into any tank 
trucks or trailers from any bulk gasoline terminal 
unless: 

(1) The bulk gasoline terminal is equipped 
with a vapor control system that prevents 



the emissions of volatile organic com- 
pounds from exceeding: 

(A) 80 milligrams per liter (4.7 grains per 
gallon) of gasoline loaded for control sys- 
tems installed before November [^ 1992 
until November h 1995 or the next major 
modification, whichever occurs first; after 
November ]^ 1995 or at the next major 
modification, these control systems shall 
prevent emissions of volatile organic 
compounds from exceeding 35 milligrams 
per liter of gasoline loaded; 

(B) 35 milligrams per liter for control sys- 
tems installed after November _L 1992; 
and that is properly installed, in good 
working order, and in operation. The 
owner or operator shall obtain from the 
manufacturer and maintain in his records 
a pre-installation certification stating the 
vapor control efficiency of the system in 
use; 

(2) Displaced vapors and gases are vented 
only to the vapor control system, or if the 
Director approves, displaced vapors and 
gases are vented to a flare; 



(3) A means is provided to prevent liquid 
drainage from the loading device when it 
is not in use or to accomplish complete 
drainage before the loading device is dis- 
connected; and 

(4) All loading and vapor lines are equipped 
with fittings which make vapor-tight con- 
nections and which are immediately 
closed upon disconnection. 

(d) Sources regulated by Paragraph (b) of this 
Regulation Rule shall not: 
9lL (1) allow gasoline to be discarded in sewers 

or stored in open containers or handled in 
any manner that would result in evapo- 
ration, or 
(2) allow the pressure in the vapor collection 
system to exceed the tank truck or trailer 
pressure relief settings. 
The owner or operator of a bulk gasoline 

gasoline 



(e) The 
terminal shall paint all tanks used for 
storage white or silver at th_£ next scheduled 
painting or bv November _h 21)02, whichever oc- 
curs first. 

(f) The owner or operator of a bulk gasoline 
terminal shall install on each external floating 
roof tank of 100 feet in diameter or less used to 
store gasoline a self-supporting roof, such as a 
geodesic dome, at the next time that the tank is 
taken out of service or bv November _L 2002, 
whichever occurs first. 



(g) The following equipment shall be required 
on all new tanks storing gasoline at a hulk gaso- 
line terminal when put into service and shall be 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



S47 



PROPOSED RULES 



required on all existing tanks storing gasoline at 
a bulk gasoline terminal bv November j\ 1995: 
nm-mounted secondary seals on all ex- 



ternal and internal floating roof tanks. 



01 

(2) gaskets on roof and deck fittings or welded 
111 



ieams where possible, and 
floats in the slotted guide poles with a 
gasket around the cover of the poles, 
(h) If. upon facility or operational modification 
of a bulk gasoline terminal that existed betore 
November 1. 1W2. an increase in benzene errus- (j) Within one year after November 1, 1996. the 

sions results such that: 



marketing terminals served bv the pipe 
line) exceed benzene emissions from tha 
cluster based upon calendar year 1991 
gasoline throughput and application o 
the requirements of this Subchapter, 
the annual increase in benzene emissions due tc 
the modification shall be olfset within the clustei 
bv reduction in benzene emissions beyond that 
otherwise achieved as a result of compliance with 



thus Rule, in the ratio of at least 1.3 to 1. 



Director shall determine the incremental ambient 



I 1 1 emissions of volatile organic compounds 
increase bv more than 25 tons cumulative 
at any time during the live vears following 
modifications: and 

(2) annual emissions of benzene from the 
cluster where the bulk gasoline terminal 
is located (including the pipeline and 



benzene levels at the fence line of any bulk gaso 
line terminal cluster resulting from benzene 



Jiiii'Mon-' trom -uih clu-.ter and shall report his 
findings to the Commission. 



Statutory A uthorily 
143-215. 107(a)(5). 



G.S. l43-2153(a)(l) 



SUBCHAPTER 2H - PROCEDURES FOR PERMITS: APPROVALS 
SECTION .0600 - AIR QUALITY PERMITS 

.0610 PERMIT REQUIREMENTS FOR TOXIC AIR POLLUTANTS 

(a) No person shall cause or allow any toxic air pollutant named in 15A NCAC 2D .1104 to be 
emitted into the atmosphere from any source without having received a permit from the commission 
in accordance with the following: 

( 1 ) Sources and modifications of sources which require a permit or permit modification because 
of the applicability of Sections in Subchapter 2D of this Chapter other than Section .1100 and 
which began construction after April 30, 1990, shall have received a permit or permit modifica- 
tion to emit toxic air pollutants before beginning construction and shall be in compliance with 
their permit when beginning operations. 

(2) The owner or operator of any incinerator subject to 15A NCAC 2D .1200 which began con 
struction or was in operation before October 1. 1991. shall apply for a permit or a permit 
modification to emit toxic air pollutants in accordance with the compliance schedules contained 
in 15A NCAC 2D .1209. All other sources at the facility with the incinerator shall be included, 
and the owner or operator of these sources shall apply for a permit or a permit modification to 
emit toxic air pollutants from these sources in accordance with Paragraph (b) or (c) of this Rule. 

(3) Paragraph (a)( 1 ) of this Rule does not apply to sources whose emissions result from combusting 
only unadulterated fossil fuels or unadulterated wood if the permit application is only for this 
type of combustion source and if the facility has not already been permitted or applied for a 
permit to emit toxic air pollutants. 

(4) The owner or operator of any source other than sources required to have a permit under Par- 
agraph (a)(1) of this Rule shall have ISO days to apply for a permit or permit modification for 
the emissions of toxic air pollutants after receiving written notification from the division. 

(5) When the director calls for permit applications for facilities pursuant to Paragraph (a)(4) ot this 
Rule, he shall call for permit applications on the basis of standard industnal classifications, that 
is, he shall call at one time for permits for all facilities statewide that have the same four-digit 
standard industrial classification code, except those facilities located in certified local air pollution 
control agency areas. .Ail sources at the facility regardless of their standard industrial classifica- 
tion code and including sources combusting only unadulterated fossil fuels or unadulterated 
wood shall be included in the call for permit applications. All members of a source or facility 
category' not having a standard industrial classification code shall similarly be called at one time. 

(6) The owner or operator of a source required to obtain a permit or permit modification before 
the date on which the guidelines in 15A NCAC 2D .1104(b) become effective shall be required 
to obtain the permit or permit modification only for toxic air pollutants named in 15A NCAC 
2D .1 104(a). However, the owner or operator of the source will later be required in accordance 



848 7:8 NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



with Paragraph (a)(4) of this Rule to obtain permit modifications covering toxic air pollutants 
named in 15A NCAC 2D .1 104(b). 
(7) Permit calls made under this Rule shall be limited to the emissions of toxic air pollutants. 

(b) The owner or operator of a source who is applying for a permit or permit modification to emit 
toxic air pollutants shall: 

(1) demonstrate to the satisfaction of the Director through dispersion modeling that the emissions 
of toxic air pollutants from the facility will not cause any acceptable ambient level listed in 15A 
NCAC 2D .1 104 to be exceeded; or 

(2) demonstrate to the satisfaction of the commission or its delegate that the ambient concentration 
beyond the premises (contiguous property boundary) for the subject toxic air pollutant will not 
adversely affect human health even though the concentration is higher than the acceptable am- 
bient level in 15A NCAC 2D .1 104 by providing one of the following demonstrations: 

(A) the area where the ambient concentrations are expected to exceed the acceptable ambient 
levels in 15A NCAC 2D .1104 are not inhabitable or occupied for the duration of the averaging 
time of the pollutant of concern, or 

(B) new toxicological data that shows that the acceptable ambient level in 15A NCAC 2D .1 104 
for the pollutant of concern is too low and the facility's ambient impact is below the level indi- 
cated by the toxicological data. 

(c) This Paragraph shall not apply to any incinerator covered under Section 15A NCAC 2D .1200. 
The owner or operator of any source constructed before May 1, 1990, who cannot supply a demon- 
stration described in Paragraph (b) of this Rule shall: 

(1) submit a compliance schedule acceptable to the Director that will reduce the subject toxic air 
pollutant ambient concentration within three years after receiving written notification from the 
Director pursuant to Paragraph (a)(4) of this Rule to a level that will not exceed any acceptable 
ambient level listed in 15A NCAC 2D .1 104; 

(2) demonstrate to the satisfaction of the commission or its delegate that complying with the 
guidelines in 15A NCAC 2D .1104 is technically infeasiblc (the technology necessary to reduce 
emissions to a level to prevent the acceptable ambient levels in 15A NCAC 2D .1 104 from being 
exceeded does not exist); or 

(3) demonstrate to the satisfaction of the commission or its delegate that complying with the 
guidelines in 15A NCAC 2D .1 104 would result in serious economic hardship. 

(d) If the owner or operator makes a demonstration to the satisfaction of the commission or its del- ' 
egate pursuant to Paragraph (c)(2) or (3) of this Rule, the Director shall require the owner or operator 
of the source to apply maximum feasible control. Maximum feasible control shall be in place and 
operating within three vears after receiving written notification from the Director pursuant to Paragraph 
(a)(4) of this Rule. 

(e) If the owner or operator of a source chooses to make a demonstration pursuant to Paragraph 
(b)(2) or (c)(2) or (3) of this Rule, the commission or its delegate shall approve or disapprove the 
pemiit after a public notice with an opportunity for a public hearing. The public notice shall meet the 
requirements of Paragraph (d) of Rule .0603 of this Section. Any subsequent public hearing shall meet 
the requirements of Paragraph (e) of Rule .0603 of this Section except that the permit, if approved, shall 
not become part of the North Carolina State Implementation Plan for Air Quality. 

(f) If the owner or operator of a facility demonstrates by modeling that any toxic air pollutant emitted 
from his facility contributes an incremental concentration to the ambient air concentration of that 
pollutant beyond his premises which is less than the acceptable ambient level values given in 15A 
NCAC 2D .1104, he does not have to provide any further modeling demonstration with his permit 
application. However, the commission may still require more stringent emission levels in accordance 
with its analysis under 15A NCAC 2D .1 107. 

(g) A permit to emit toxic air pollutants shall not be required for: 

(1) the noncommercial use of household cleaners, household chemicals, or household fuels in pri- 
vate residences; 

(2) asbestos demolition and renovation projects that comply with 15A NCAC 2D .0525 and that 
are being done by persons accredited by the Department of fnvironment, Health and Natural 
Resources under the Asbestos Hazard F.mergency Response Act; 

(3) emissions Irom gasoline dispensing facility or gasoline service station operations performed as 
a part of petroleum distribution to the ultimate consumer where the emissions comply with 15A 
NCAC 2D .0524, .0925, .0928, .0932 and .0933 and that receive gasoline from bulk gasoline 



7:8 NORTH CAROLINA REGISTER July 15, 1992 849 



PROPOSED RULES 



plants or bulk gasoline terminals that comply with 15A NCAC 2D .0524, .0925, .0926, .0927 
.0932, and .0933 via tank trucks that comply with 15A NCAC 2D .0932; 

(4) the use for agricultural operations by a farmer of fertilizers, pesticides, or other agricultura 
chemicals containing one or more of the compounds listed in 15A NCAC 2D .1104 if such 
compounds are applied in accordance with agronomic practices acceptable to the North 
Carolina Department of Agriculture and the Commission; 

(5) manholes and customer vents of wastewater collection systems; 
[6] emissions from bulk gasoline plants that comply with 15A NCAC 2D .0524, .0925, .0926, .0932, 



and .0933 unless the Director finds that a permit to emit toxic air pollutants is required for a 
particular bulk gasoline plant; 
(7) emissions from bulk gasoline terminals that comply with 15A NCAC 2D .0524, .0925. .0927 
.0^32, and .0933 if the bulk gasoline terminal existed before November _k N92. unless the Di- 
rector finds that a permit to emit toxic air pollutants is required under this Rule for a particular 
bulk gasoline terminal 

(h) A permit to emit toxic air pollutants shall not be required for any facility whose actual emissions 
from all sources are no more than the following: 



(1 


acetaldehyde 


(2 


acetic acid 


(3~ 


acrolein 


(4; 


acrylonitrile 


(5 


ammonia 


(6' 


ammonium chromate 


(T 


ammonium dichromate 


(V 


aniline 


(9 1 


arsenic and inorganic 




arsenic compounds 


(10 


) asbestos 


(11 


i aziridine 


(12 


) benzene 


(13 


) benzidine and salts 


(14 


) benzo(a)pyrene 


(15 


) benzyl chloride 


(16 


) beryllium 


(17 


beryllium chloride 


(18 


beryllium fluonde 


(19 


beryllium nitrate 


(20 


bis-chloromethyl ether 


(21 


bromine 


(22 


1,3-butadiene 


(23 


cadmium 


(24' 


cadmium acetate 


(25 


cadmium bromide 


(26 


calcium chromate 


(27- 


carbon disulfide 


(28- 


carbon tetrachloride 


(29- 


chlorine 


(30- 


chlorobenzene 


(3T 


chloroform 


(32: 


chloroprene 


(33^ 


chromic acid 


(34^ 


chromium (VI) 


(35) 


cresol 


(36) 


p-dichloro benzene 


(37 


dichlorodifluoromethane 


(38) 


dichlorofluoromethane 


(39) 


di(2-ethylhexyl)phthalate 


(40) 


dimethyl sulfate 



lb/yr 



10 

0.0056 
0.0056 



0.016 
1.9xl0' 6 

8.1 
0.0010 

2.2 

0.28 
0.28 
0.28 
0.28 
0.025 

12 

0.37 
0.37 
0.37 
0.0056 

460 



290 

0.0056 

0.0056 



lb/day 



lb/hr 



lb 15 mm 
1.7 
0.24 
0.005 

0.17 



0.25 



0.13 



0.13 



0.013 



3.9 

0.79 
46 

9.2 



0.057 



0.89 
0.56 



5200 
10 

0.63 
0.063 



S50 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 








(41) 1,4-dioxane 




12 






(42) cpichlorohvdrin 


5600 








(43) ethyl acetate 






36 




(44) ethylenediamine 




6.3 


0.64 




(45) ethylene dibromide 


27 








(46) ethylene dichloride 


260 








(47) ethylene glycol monoethyl ether 




2.5 


0.48 




(48) ethylene oxide 


l.X 








(49) ethyl mercaptan 






0.025 




(50) fluorides 




0.34 


0.064 




(51) formaldehyde 








0.010 


(52) hexachlorocyclopentadiene 




0.013 


0.0025 




(53) hexachJorodibenzo-p-dioxin 


0.0051 








(54) n-hexane 




23 






(55) hexane isomers except n-hexane 








23 


(56) hydrazine 




0.013 






(57) hydrogen chloride 








0.045 


(58) hydrogen cyanide 




2.9 


0.28 




(59) hydrogen fluonde 




0.63 




0.016 


(60) hydrogen sulfide 








0.13 


(61) lithium chromate 


0.0056 








(62) maleic anhydride 




0.25 


0.025 




(63) manganese and compounds 




0.63 






(64) manganese cyclopcntadicnyl tricarbonyl 




0.013 






(65) manganese tetroxide 




0.13 






(66) mercury, alkyl 




0.0013 






(67) mercury, aryl and inorganic compounds 




0.013 






(68) mercury, vapor 




0.013 






(69) methyl chloroform 




250 




16 


(70) methylene chloride 


1600 








(71) methyl ethyl ketone 




7S 




5.6 


(72) methyl isobutyl ketone 




52 




1.9 


(73) methyl mercaptan 






0.013 




(74) nickel carbonyl 




0.013 






(75) nickel metal 




0.13 






(76) nickel, soluble compounds, as nickel 




0.013 






(77) nickel subsulfide 


0.14 








(78) nitric acid 








0.064 


(79) nitrobenzene 




1.3 


0.13 




(80) N-nitrosodimethylarnine 


3.4 








(81) pentachlorophenol 




0.063 


0.0064 




(82) perchlorocthvlene 


13,000 








(83) phenol 






0.24 




(84) phosgene 




0.052 






(85) phosphine 








O.OOS 


(86) polychlorinated biphenyls 


5.6 








(87) potassium chromate 


0.0056 








(88) potassium dichromate 


0.0056 








(89) sodium chromate 


0.0056 








(90) sodium dichromate 


0.0056 








(91) strontium cliromate 


0.0056 








(92) styrene 






2.7 




(93) sulfuric acid 




0.25 


0.025 




(94) tetrachlorodibenzo-p-dioxin 


0.00020 








(95) 1,1, 1 .2-tetrachloro-2,2-difluoroethane 




1100 






(96) 1 , 1,2,2-tetrachloro- 1 ,2-difluoroethane 




1100 






(97) 1,1,1 ,2-tetrachloroethane 


430 








(98) toluene 




98 




3.6 


7:8 NORTH CAROLINA REGISTER July 15, 


1992 


S51 



PROPOSED RULES 



(99) toluene-2,4-diisocyanate 

(100) trichloroethylene 

(101) trichlorofluoromethane 

(102) 1,1 ,2-trichloro- 1,2,2-trifluoroethane 

(103) vinyl chloride 

( 1 04) vinylidene chloride 

(105) xylene 



4000 



2b 



0.011 



2.5 

57 



140 



0.001 
60 
4.1 



Statutory Authority G.S. 143-215. 3(a) ( 1 ); 143-215.108; J43B-2S2. 



TITLE 16 - DEPARTMENT OF PUBLIC 
EDUCATION 



lyotice is hereby given in accordance with G.S. 
150B-21.2 that the State Board of Education in- 
tends to amend rule(s) cited as 16 NCAC 6C 
.0201 - .0202, .0205 - .0206. 

1 he proposed effective dale of this action is No- 
vember 1, 1992. 

1 he public hearing will be conducted at 9:30 
a.m. on August 7, 1992 at the 3rd Floor Confer- 
ence Room, Education Bldg., 116 West Edenton 
Street, Raleigh, NC 27603-17 12. 

J\eason for Proposed Actions: Amendments are 
designed to implement legislative directive to 
strengthen the teacher education process. 



Cc 



omment Procedures: Any interested person 
may submit written comments either before or at 
the hearing or orally at the hearing. 

CHAPTER 6 - ELEMENTARY AND 
SECONDARY EDL CATION 

SL BCHAPTER 6C - PERSONNEL 

SECTION .0200 - TEACHER EDUCATION 

.0201 STATE EVALUATION COMMITTEE 
ON TEACHER EDUCATION 

(a) The SBE appoints a» a state evaluation 
committee on teacher education of at- least 18 
persons vvhe- a*e lay and professional represen- 
tatives ef from all phases »ft4 levels of education. 
Members serve three year staggered terms, and 
may consecutively serve no more than two con 
socutivo terms. The SBE designates the chair- 
man and secretary of the committee. 

(b) The committee performs the following 
functions: 

( 1 ) moots as nocossary te- roviow stato a«4 -?va- 
tional Council fof Accreditation t*f 
Teacher Education (NCATE) visitation 
commit too reports; t» determine compli 



anse with the W percent pas* Fate && the 
NTE (prof e ssional knowledge) as4 spe- 
cialty area); a»4 te roviow perform a» €e 

program which r e quires a 9$ percent Fate 
ef- succoso: a«4 reviews findings related to 
the compliance of I' [Es with establi shed 



(2) 



SBE criteria for approval of teacher edu- 
cation programs, and 
makes reports and recommendations to 
the SBE regarding teacher education pro 
gram approval based on the SBE criteria. 



Authority G.S. 115C-12(9)a. 
Article IX. Sec. 5. 



.0202 



N.C. Constitution, 



APPLICATION FOR APPROVAL 
CRITERIA 

(a) Each IHE which seeks SBE approval for 
any teacher education program must file with the 
Department a preliminary application in the 
form prescribed by the SBE. 

(b) The IHE will engage in self-study in ac- 
cordance with the existing NCATE state proto- 
col agreement. 

(c) When the IHE has completed all prepara- 
tion phases of the self-study, the Department 
sends a visitation committee to verify the reports 
for ail specialty areas for which approval is 
sought. 

(4) The evaluation committee considers the 
NCATE ' state visitation committoo reports, to- 
gether with tmy- IHE response te the state report 
as weU as student p e rformance data. The ovalu 
ation committee makes r e commendations t» the 
SBE regarding approval. 

fe} The SBE approv e s programs fef a fivo year 
period unless it considers a provisional approval 
period el from en*e t» throe y e ars appropriate. 
lUEs e« provisional approval must demonstrat e 



annual progress toward mooting all roquiromonts 
ef unconditional approval. 

(d) (f) The SBE notifies IHEs which are denied 
approval of the reasons for denial. The IHE may 
reapply after it has corrected the conditions 
which led to the denial of approval. 

(e) (§) Each approved IHE shall continually re- 
view its programs. The SBE will annually mon- 



852 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



itor student performance based upon required 
examinations and progression toward continuing 
certification. The IHE may request and/or the 
SBE may conduct a re-evaluation at any time. 

(fi fh) During the fmal year of the current ap- 
proval period, the IHE shall arrange for a re- 
approval committee visit. 

(g) fi} Approved IHEs shall make annual re- 
ports of such information as the SBE requests. 

(h) fj} The SBE must approve any revisions to 
approved programs. 

(i) The SBE must approve each teacher edu- 
cation program before an IHE may recommend 
its graduates for certification. In making rec- 
ommendations to the SBE and in determining 
the approval status of an IHE teacher education 
program and its specialty area program, such as 
mathematics or science, the state evaluation 



committee and the SBE, respectively, will weigh 
the following criteria: 



ill 

ill 



SACS accreditation of the IHE; 



either full accreditation or accreditation 
with stipulations of the professional edu- 
cation unit bv the national council for ac- 
creditation of teacher education 
(NCATE) at the basic and advanced lev- 



01 



els, as appropriate; 

approval of ah I H E specialty area pro- 
grams by the state program approval 
process in accordance with established 
SBE standards, guidelines and competen- 
cies at the undergraduate and graduate 
levels, as appropriate; 

(4) evidence that the 111!' requires a 2.50 grade 
point a\ erage on a 4.01) scale for formal 
admission into teacher education; 

(5) evidence that during the two preceding 
consecutive years. 70 percent o[ the grad- 
uates of the III! have passed the NTE on 
professional knowledge and on appropri- 
ate specialty area tests as established bv 
Rule .0310 of this Subchapter: 

(6) evidence that during the two preceding 
consecutive years. ^5 percent of the grad- 
uates of the III! employed bv public 
schools in the State have earned a contin- 
uing certificate as provided bv Rule .0304 
of this Subchapter: and 

(7) evidence that faculty members assigned bv 
the II IF: to teach undergraduate or gradu- 



ate methods courses or to supervise field 
experiences for prospective teachers hold 
valid North Carolina teachers' certificates 
in the arca(s) of their assigned responsi- 
bilities. 

iuthority G.S. I I5C-12(9)a.; N.C. Constitution, 
irticle IX, Sec. 5. 



.0205 STATE BOARD REVIEW STANDARDS 
AND APPROVAL ACTIONS 

fa} fe order te- receive' approval by the SBE, a 
t e acher education program must: 

f-ty obtain Southern Association e£ Colleges 

a«4 Schools (SACS) accreditation; 
f3) obtain NCATE accreditation; 
fj) obtain successful state review &f the spe- 

cialty studies a»4 professional studios; 
(4} demonstrate that it* graduates have 
achieved a minimum W percent pas* Fate 
e» the NTE (professional loaowlcdge a«4 
appropriate specialty tests); 
f£) demonstrate that- at- least- 05 percent &{ *s 
graduates perform successfully i» the h4- 
t+al- certification program; a&4 
f6} r e quu e certification e£ ah- methods faculty. 
fh+ £e* purposes ©f state review each specialty 
ar e a fof which approval is sought wiU prepare a 
self study addressing aft state standards. On site 
reviews w+H- apply the state standards k> each 
specialty area. 

(a) fe+ Each IHE seeking approval must present 
documentation for each specialty area that: 

(1) the state-approved professional studies 
guidelines for all certificated school per- 
sonnel are adequately addressed. 

(2) the state-approved professional studies 
competencies common to all certificated 
school personnel are adequately ad- 
dressed. 

(3) candidates for admission to certification 
preparation programs meet minimum 
score requirements adopted by the SBE 
on Core Batteries I (Communication 
Skills) and II (General Knowledge) of the 
NTE before formal admission can occur. 
Undergraduate degree-seeking students do 
not complete more than one-half of the 
professional studies sequence (excluding 
student-teaching internship) before being 
formally admitted into the certification 
preparation program. 

(4) sequentially planned field experiences for 
undergraduate degree-seeking students be- 
gin early in the student's program and 
culminate in a continuous and extended 
minimum ten-week period of student 
teaching in the area in which the student 
seeks certification. All field experiences 
are supervised and formal evaluations in- 
volving faculty, cooperating teachers and 
students occur as appropriate. 

(5) preparation for entry certification at the 
advanced level includes supervised 
internship or field experiences appropriate 
to the role(s) for which students are being 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



S53 



PROPOSED RULES 



prepared. These experiences are the basis 
for applying theory to practice, developing 
competencies at a high proficiency level, 
and evaluating the candidate's perform- 
ance. 

(6) the goals and objectives of the specialty- 
studies are clearly stated in writing, are 
readily accessible to faculty, students and 
other consumers and reflect a clear con- 
ception of the role(s) in the public schools 
for which students are being prepared. 

(7) an appropriate balance among general 
studies, specialty area studies and profes- 
sional studies exists at the undergraduate 
level to assure a well-rounded education 
for students. 

(8) the program of specialty studies complies 
with state-approved guidelines for the 
certification area in which the student is 
being prepared. 

(9) the specialty studies complies with state- 
approved competencies for the certif- 
ication area in which the student is being 
prepared. 

(10) master's, sixth-year (e.g., CAS, Ed.S.) 
and doctoral curricula are clearly deline- 
ated and differentiated from one another 
and from the undergraduate curriculum. 

(11) requirements for certification-only stu- 
dents are clearly described and compara- 
ble to those for degree-seeking students. 

(12) each faculty member teaching in the 
specialty area demonstrates competence in 
the area(s) of assignment. 

(13) one appropriately specialized faculty 
member full-time to the institution is as- 
signed major responsibility for teaching in 
and coordinating each specialty area of- 
fered. To ensure diversity, there must be 
a sufficient number of additional faculty, 
appropriately specialized, to deliver the 
level(s) offered; e.g.. undergraduate, mas- 
ter's, specialist. Each advanced degree 
program that leads to the doctorate has 
at least three full-time faculty who have 
earned the doctorate in the field of spe- 
cialization for which the degree is offered. 

(14) among the credentials of the faculty de- 
livering (e.g.. teaching, directing, coordi- 
nating) the specialty area, there is evidence 
of recent, substantive involvement with 
public school students, staff members or 
programs. 

(15) among the credentials of adjunct part- 
time faculty delivering the specialty area 
there is evidence of recent, substantive in- 
volvement with the institution via stu- 



(16) 



dents, other faculty or prograrr 
development 

specialized books and periodicals, current 
curriculum guides, textbooks and course: 
of study adopted by local school system 
and the SBE, instructional media, equip 
ment and other forms of technology, test 
ing materials and supplies for the 
production of teacher-made materials and 
library resources for the specialty studies 
are available and adequate in number to 
serve the student population 

instructional resources for the specialty 
area are organized for accessibility and 
there is evidence of use by both students 
and faculty 

appropriate and sufficiently-equipped 
classroom space is provided to meet the 
needs of each specialty area. 

adequate facilities, including sufficient 
office space, are provided to serve the 
needs of staff and faculty, to counsel stu 
dents, and to work effectively with local 
school personnel 

an annual review of the specialty area is 

conducted and the resulting data are ap 

plied, as appropriate, for program im 

provement. 

(b) (4} All IHEs with existing teacher education 

programs must have an NCATE SBE 



(17) 



IX) 



(19) 



(20) 



NCATE State review completed by December 
31,1992. AH- IHEs admitting students »thefeH 



ef ±$m must be accredited by NCATE aft4 ap- 
proved by toe SBE. Students who have been 
formally admitted before June 30, 1993 into a 
program that leads to certification may complete 
that program and be eligible to be recommended 
for certification on the condition that they com- 
plete such programs no later than June 30, 1995. 
IHEs which a?e eet- approved by NCATE SBE 



by J««e ZQ? 1003 w+y ftet be eligible to reapply 
to begin toe process tof approval status fef a pe- 
He4 ©f a minimum ef»fte yea? from the tim e the 
H-H* K» notified tbat- ite program has been denied 
approval by the &&fe After December 31, 1992, 



IHEs seeking initial approval for teacher educa- 
tion must be reviewed by NCATE State to be 
eligible for SBE approval. 

(c) The SBE receives and considers recomm- 
endations for approval action on an HIE from its 



state evaluation committee on teacher education. 



The SBE will accept any comments or additional 
information submitted bv the I HI: before making 



its decision under this Rule 
der separate appro val decision 



rhe SBE shall reiv 
a£: 



propnate to an 
pro 'jams as follows 



I HE and 



at all [eve 

its specialty 



area 



854 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



(1) Full approval. This status indicates that 
the 11 1H teacher education and specialty 
area programs at all levels are [udged to 
be fully qualified to produce effective 
teachers for the public schools I he SBE 
grants approval for a five-vear period. 
The SBE or the [HE mav call for an in- 
terim on-site review at am time during the 
five \ear period if conditions warrant that 
action. 

(2) hull approval with stipulation(s). This 
status specifies minor exceptions that the 
1111" must address within one year. The 
exceptions will he limited to those that 
can be easily corrected and verified in a 
written report or by a small on-site State 
visitation team . I he SBE will grant full 
approval if the HIE corrects the ex- 
ceptions within the specified time U the 
1111 does not correct the exceptions 
within the specified time, the SBE will 
place the 1111: on provisional status. Ap- 
proval for a five-vear period begins with 
the date of the initial action b\ the SBE. 

(3) Provisional approval. This status specifies 
critical deficiencies that the 1 11 1 must ad- 
dress within three years. The SB! mav 
provisionally approve all programs at the 
111!" or individual specialty area programs 
and or levels. The 1111' must: 

(A) submit to the S B E an annual written 
report of Us actions taken to correct the 
deficiencies; 

(B) be visited annually bv a consultant from 
the Division of Teacher Education Ser- 
vices of the Department, who monitors 
the II 11 's progress: and 

(C) be reevaluated for compliance bv an 
on-site State visitation team 

The SBE will grant full approval or full 
approval with stipulations if the II 11 cor- 
rects the deficiencies within the specified 
time. If the 1111: does not correct the de- 
ficiencies within the specified time, the 
SBE will deny approval. .Approval for a 
five-vear period begins with the date of the 



initial action bv the SBE 



Hi 



Denial of approval. This status occurs 
when an 1111 and or one or more of its 
specialty areas and or levels are judged to 
be unqualified to produce effective teach- 
ers for the public schools. After the 1111 
receives notice of thie denial, no students 
completing the program will be eligible for 
certification except those w ho were 
formally admitted to t_he program before 
the IHE received notice of the denial. An 



1HE must wait one year before beginning 
the process of seeking approval. 

Authority G.S. I I5C-I2(9)a.; N.C. Constitution, 
Article IX, Sec. 5. 

.0206 CONSORTIUM-BASED PROGRAMS AND 
INNOVATIVE/EXPERIMENTAL 
PROGRAMS 

(a) A consortium-based teacher education 
program is an alternative to the regular approved 
program which involves IHEs, public schools, 
professional groups and the Department in the 
planning and implementation of programs. 

(b) The consortium shall receive approval by 
the SBE before it implements an alternative pro- 
gram. The application process described in Rule 
.0202 applies to alternative programs. The De- 
partment shall issue a certificate to all graduates 
of these approved programs who are recom- 
mended by the consortium and who otherwise 
meet certification requirements. 

(c) When the Department receives a proposal 
to establish an alternative program, it will review 
the proposal, including making on-site visits with 
agencies as required. The State Evaluation 
Committee on Teacher Education considers staff 
recommendations and makes its own recomm- 
endations to the SBE for approval. 

(d) The SBE will approve programs which 
meet the following standards: 

(1) The program is planned, developed, im- 
plemented and evaluated by a consortium 
of agencies, including IHEs, local school 
administrative units, professional groups 
and the SBE. 

(2) "The program is appropriately organized 
and administered. Consortium-based 
programs are developed and implemented 
according to an established managerial 
structure which describes activities and 
relationships. 

(3) The program has sufficient and appropri- 
ate supportive human and physical re- 
sources. 

(4) "The consortium develops entry require- 
ments and levels of competency expected. 

(5) 'The program addresses the needs of the 
students. 

(6) The program includes exit levels of com- 
petence, a procedure for recommending 
certification, and a follow-up process. 

(e) The SBE mav grant approval to an II II to 
develop an innovative or experimental teacher 
education program. The SBE will approve such 
a program separately from the criteria set out in 
Rule .0205 of this Section. The SBE will evalu- 
ate the program annually based on a written re- 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



S55 



PROPOSED RULES 



port submitted to it by the IHE and or by an 

on-site State visitation team to assure that the 
IHF is producing prospective teachers who can 
function effectively in the public schools of the 
State. ~ 

Authority G.S. H5C-12(9)a.; S.C. Constitution, 
Article IX, Sec. 5. 

TITLE 19A - DEPARTMENT OF 
TRANSPORTATION 



lyotice is hereby given in accordance with G.S. 
I50B-21.2 that the Department of Transportation 
intends to amend rule(s) cited as 19 A NCAC 2B 

.0164. 

1 he proposed effective date of this action is Oc- 
tober 1. 1992. 

1 nstructions on how to demand a public hearing: 
A demand for a public hearing must be made in 
writing and mailed to the Department of Trans- 
portation, c o A.D. Allison, II. P.O. Box 25201, 
Raleigh. N.C. 2761 1. The demand must be re- 
ceived within 15 days of this Notice. 

IXeason for Proposed Action: The amendment 
is needed to enable the Department to contract 
with private firms for right of way acquisition ser- 
vices for highway projects when the workload and 
TIP schedule make it necessary. 

(_ omment Procedures: Any interested person 
may submit written comments on the proposed 
rule by mailing the comments to the Department 
of Transportation, c o A.D. Allison, II, P.O. Box 
25201, Raleigh, NC 27611, within 30 days after 
the proposed rule is published or until the date of 
any public hearing held on the proposed ride, 
whichever is longer. A copy of the fiscal note 
prepared for this proposed amendment can be ob- 
tained from the Department of Transportation. 

CHAPTER 2 - DIVISION OF HIGHWAYS 

SUBCHAPTER 2B - HIGHWAY PLANNING 

SECTION .0100 - RIGHT OF WAY 

.0164 USE OF RIGHT OF WAY 
CONSULTANTS 

(a) Introduction and purpose. The North 
Carolina Department of Transportation main- 
tains a staff capable of performing the normal 
workload for most of the functions required for 
the acquisition of rights of way for our highway 



systems. However, it is recognized that situ- 
ations arise and certain specific needs exist which 
can best be met by the use of qualified consult- 
ants outside the Department. 
These Rules and Regulations are established as 
a guide for the preparation, execution and ad- 
ministration of contracts for right of way acqui- 
sition services by consultant firms that are over 
ten thousand dollars ($10,000.00). 
Due to the diversity of contract types, some 
portions of these Rules and Regulations may not 
be fully applicable to all situations. The Right 
of Way Branch Manager shall be responsible for 
detennining when deviations from portions of 
these Regulations are justified. 
These Rules and Regulations have been devel- 
oped in response to and in accordance with, the 
following directives and requirements: 

(1) General Statute 136-28. 1(f); 

(2) 23 CFR 172, the FHWA regulations 
governing procurement of professional 
services; 

(3) 23 CFR 710-720, FHWA right of way 
regulations which contain some contract- 
ing requirements; 

(4) Office of Management and Budget 
(OMB) Circular A- 102, Section 36, "Pro- 
curement." (Revised version announced 
in Presidential memo dated March 12, 
1987.); 

(5) NCDOT Title VI Compliance Program. 
All personnel involved with contracts for right 
of way acquisition services shall comply with 
G.S. 133-32 and the Department of Transporta- 
tion Personnel Manual, Section VI, entitled 
"Employee Relations". 

(b) Definitions. The following definitions are 
for the purpose of clarifying and describing words 
and terms used herein: 

(1) Sp e cial Projects Administrator Right of 
Wav Consultant Coordinator - The indi- 
vidual who is assigned the responsibility 
of initiating, negotiating, and administer- 
ing a contract for professional or special- 
ized services. 

(2) Cost per Unit of Work - A method of 
compensations based on an agreed cost 
per unit of work including actual costs, 
overhead, payroll additives and operating 
margin. 

(3) Cost Plus Fixed Fee - A price based on 
the actual allowable cost, including over- 
head and payroll additives, incurred by the 
firm performing the work plus a pre- 
established fixed amount for operating 
margin. 

(4) Cost Proposal - A detailed submittal 
specifying the amount of work anticipated 



S56 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



and compensation requested for the per- 
formance of the specific work or services 
as defined by the Department. 

(5) Firm - Any private agency, firm, organ- 
ization, business or individual offering 
qualified right of way acquisition services. 

(6) Lump Sum - A fixed price, including cost, 
overhead, payroll additives and operating 
margin for the performance of specific 
work or services. 

(7) Payroll Burden - Employer paid fringe 
benefits including employers portion of 
F.I.C.A., comprehensive health insurance, 
group life insurance, unemployment con- 
tributions to the State, vacation, sick 
leave, holidays, workman compensation 
and other such benefits. 

(8) Proposal - An expression of interest by a 
firm for performing specific work or ser- 
vices for the Department. 

(9) Scope of Work - All services, actions and 
physical work required by the Department 
to achieve the purpose and objectives de- 
fined in the contract. Such services may 
include the furnishing of all required la- 
bor, equipment, supplies and materials 
except as specifically stated. 

(10) Contract Amendment - A formal 
amendment which modifies the terms of 
an existing contract. 

(11) Termination Clause - A contract clause 
which allows the Department to termi- 
nate, at its discretion, the performance of 
work, in whole or in part, and to make 
final payment in accordance with the 
terms of the contract. 

(c) Application. These Rules and Regulations 
shall apply to all contracts for right of way ac- 
quisition services which cost more than ten 
thousand dollars ($10,000.00) and are obtained 
by the Department of Transportation pursuant 
to G.S. 136-28(f). 

(d) Right of Way consultant selection com- 
mittee. The Committee shall consist of the 
Branch Manager, Assistant Branch Managers, 
Unit Heads, and the Right of Way Special 
Pro j oct o Administrator Consultant Coordinator 



and shall be chaired by the Branch Manager. 
When Federal funds will be used as compen- 
sation for services to be solicited, a representative 
of the Federal Highway Administration shall sit 
with the Committee but shall not be a voting 
member. 

(e) Pre-qualification of firms - general agree- 
ment. Q» a y e arly bar . is, && The Department 
shall advertise for firms interested in performing 
right of way acquisition services for the North 
Carolina Department of Transportation in June 



of each year or when necessitated by its projected 
workload. The advertisement will be published 
in the North Carolina Purchase Directory and/or 
the legal section of major newspapers. The re- 
sponse time will normally be two weeks after the 
advertising date. The response shall include the 
Federal Government's Forms 254 and 255, 
copies of the firms latest brochures, and such 
similar information. Additional firms may be 
considered for pre-qualification during the yearly 
period if they so request and if the Department 
recognizes a need for additional pre-qualified 
firms. 



Evaluation of the firms expressing interest will 
be based on the following considerations: 

(1) Possesses a high ethical and professional 
standing; 

(2) Responsible personnel shall be recognized 
professionals in the field(s) of expertise 
required by the contract; 

(3) Adequate experience in the field(s) of ex- 
pertise required by the contract; 

(4) Adequacy in both number and quality of 
staff to perform the required services; 

(5) Ability to meet the time schedule estab- 
lished for the work; 

(6) Financial ability to undertake the pro- 
posed work; 

(7) Adequacy of the firms accounting system 
to identify costs chargeable to the project; 

(8) Past performance by the firm on previous 
contracts with the Department of Trans- 
portation; 

(9) Any other data pertinent to the contract 
under consideration; 

( 10) When pertinent, the firm shall possess the 
quality of equipment necessary to perform 
the required services to the standards ac- 
ceptable to the Selection Committee. 
AH firms mooting A number of firms sufficient to 
perform the anticipated workload that meet the 
qualifications in Paragraphs (e)(1) through 
(e)(10) of this Rule shall be designated as pre- 
qualificd to perform right of way acquisition ser- 
vices for the North Carolina Department of 
J ransportation. The number of pre-qualified 
firms to be maintained under General Agreement 
shall be determined by the Manager of the Right 
of Way Branch pnor to the selections based on 
the anticipated needs of the Department. a«4 a 
A General Agreement shall be executed with 
each firm for a term covering the following year 
after review and acceptance of fixed billable rates 
by the Fiscal Section. Additional firms pre- 
qualifying during the yearly period shall execute 
a General Agreement for the remainder of the 
yearly period. Should the term of a General 
Agreement pass without utilizing any ol the pre- 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



S57 



PROPOSED RULES 



qualified firms under that Agreement on any 
Specific Projects, the Department may, at its 
discretion, extend the term of the General 
Agreements for an additional year without ad- 
vertising for additional pre-qualified firms. This 
is to be accomplished by execution of a Supple- 
mental Agreement which provides for changes to 
the fixed Billable Rates subject to audit approval 
of the fiscal Section of the Department. 

(f) Fixed billable rates. 1 he annual General 
Agreement will not be executed until the fixed 
billable rates submitted as Appendix E to the 
General /\greement have been reviewed by the 
External Audit Branch of the Department's Fis- 
cal Section. The review will verify the accuracy 
of the proposed fixed billable rates based upon 
an examination of the average wage rates by em- 
ployee classifications, overhead rates, as well as 
limitations on compensation and indirect salaries, 
wages and fringe benefits. 

In order to perform the examination of Appendix 
E rates, the firm will be required to submit an 
analysis showing the computation of the average 
wage rate per classification with supporting doc- 
umentation for the salary and wage rates used 
(i.e., payroll register, check stubs, etc.). The 
overhead rate shall be based upon the current 
completed year and audited by a State/Federal 
Agency. If unaudited, the firm must submit a 
detailed computation of overhead accompanied 
by a chart of accounts, financial statement, and 
statement of employment policy. 

(g) Register of pre-qualified firms. The Right 
of Way Sp e cial Project '. Administrator Consult- 
ant ( 'ooidinator will be responsible tor main- 
taining a "Register of Pre-Qualified firms" 
which have executed a General Agreement to 
perform right of way acquisition services for the 
North Carolina Department of Transportation - 
Right of Way Branch. 

(h) Request for approval to solicit specific 
project proposals. The Right of Way Consultant 
Selection Committee through the Manager of 
Right of Way is responsible for determining 
when the need for right of way acquisition ser- 
vices exists. Upon determining that a need exists, 
the Committee shall request approval from the 
Branch Manager to solicit proposals for the 
work. The request shall be in writing and shall 
include the type of work and specific justification 
for the work being performed by a consultant 
firm such as: 

( 1 ) non-availability of manpower, 

(2) lack of expertise, or 

(3) other reasons. 

(i) Solicitations of specific project proposals. 
Specific Project Proposals will be solicited from 
all Pre-Qualified Firms. Solicitations shall be by 



direct mailing of plans and Specific Project Pro- 
posal. 

The Right of Way Special Projects Administrator 
( 'onsultant Coordinator, upon the approval of 
the Manager of Right of Way, shall be responsi- 
ble for preparing the requests for proposals. The 
request shall contain plans and information de- 
scribing the location of the project, types and 
scope of work required, and the time schedule for 
accomplishing the work. 

The solicitation for a Specific Project Proposal 
shall required that all firms shall attend a Scoping 
Meeting on a specified date in order to qualify to 
submit a Specific Project Proposal for consider- 
ation. Any firm that does not wish to submit a 
Specific Project Proposal on a particular project 
shall advise, in writing, the Manager of Right of 
Way of their decision not to submit a Specific 
Project Proposal for that project. 
(j) Selection of firm for specific project con- 
tract. The Right of Way Consultant Selection 
Committee shall review all responses received to 
the request for proposals and shall select three 
firms from those indicating interest (except when 
there are fewer than three responses). When se- 
veral projects are under consideration at the same 
time, a firm shall be selected for each project and 
two alternates may be selected from the entire 
group, at the discretion of the Selection Com- 
mittee. These firms shall be listed in descending 
order of preference based on the Selection Com- 
mittee's review and analysis of all responses. The 
Committee may elect to interview all or part of 
the firms responding to the request for proposal 
prior to establishing the order of preference. The 
Selection Committee's file shall be documented 
as to the reasons for the selection of a firm. 
In the evaluation of the firms submitting Specific 
Project Proposals, the following factors shall be 
considered: 

( 1 ) The monetary amount of the competitive 
proposal; 

(2) The firm personnel and their qualifica- 
tions who are currently available to per- 
form right of way acquisition services on 
the specific project; and 

(3) The ability of the firm to complete the 
work on time according to the Depart- 
ment's schedule. 

Any firm selected to perform Right of Way Ser- 
vices for the North Carolina Department of 
Transportation shall be required to establish an 
office in North Carolina; and may, at the dis- 
cretion of the Department, be required to estab- 
lish the office at the location of the project. This 
office shall be the location for mamtaining all 
project records open for review by appropriate 
Department personnel. 



858 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



PROPOSED RULES 



After the authorization to proceed to negoti- 
ations is given by the Branch Manager, the Right 
)f Way Special Projects Administrator Consult- 
mt Coordinator shall notify the firm chosen by 
;he Selection Committee. 

(k) Negotiation of specific project contract. 
Prior to receiving a specific project proposal, the 
Right of Way Special Projects Administrator 
Consultant Coordinator shall prepare an estimate 



j{ the cost of performing the work in-house. 
This estimate will be used in evaluating the ac- 

eptability of the selected firm's cost proposal. 
The format used for preparation of the in-house 

stimate will vary depending on the type of work 
required. Generally it will include an estimate 

>f the manhours required, broken down by clas- 

ifications, converted to a cost estimate by the 
ipplication of the appropriate salaries. Payroll 
idditives (provided by the Fiscal Section), over- 
lead and an estimate of the necessary direct ex- 
Denses should be included. This in-house 
estimate shall be documented, easy to review and 
permanently retained in the project files, 
[f considered necessary by the Right of Way 
special Projects Administrator Consultant Co- 



jrdinator a meeting with the selected firm may 



:>e scheduled to discuss the scope of the proposed 
ork. The discussions will vary depending upon 
the firm's familiarity with the Department's 
Tiethods, policies, standards, etc. For firms un- 
familiar with the Department's requirements, the 
iiscussions should include: 

(1) Policies used by the Department for the 
type and scope of work involved; 

(2) A copy of a contract in draft form; 

(3) Methods of payment; 

(4) Procedures for invoicing; 

(5) Standard forms to be used; 

(6) Fiscal requirements; 

(7) Items and 'or services to be provided by 
the Department. 

A representative of the firm shall keep minutes 
jf the meeting, have them typed and submit a 
:opy of the Right of Way Special Projects A4- 
mim strut or Consultant Coordinator. The min- 



utes shall be reviewed for completeness, accuracy 
and confirmation of mutual understanding of the 
scope of work. The minutes shall be approved 
by signature of the Right of Way Special Proj e cts 
\dmini strut or Consultant Coordinator and an 



approved copy will be returned to the firm. 
The firm's competitive cost proposal shall be 
supported by a breakdown of the manhours re- 
quired to perform each of the services contained 
jri the contract and the fixed billable rate for each 
rf the classifications of personnel to be utilized. 
The fixed fee must be specifically broken out on 
the firm's specific project cost proposal. The 



firm's cost proposal must also include a detailed 
breakdown of all non-salary direct costs and any 
sub-contract or fee services. 
Upon receipt of the selected firm's cost proposal, 
a review will be made. The review shall include 
a comparison with the in-house estimate and is 
intended to determine both the reasonableness 
of the proposal and areas of substantial differ- 
ences which may require further discussion and 
negotiation. Where further negotiations are re- 
quired, they shall be the responsibility of the 
Right of Way Special Proj e cts Administrator 
Consultant Coordinator. 

The final negotiations shall satisfactorily con- 
clude all remaining points of difference and shall 
consider any comments submitted by External 
Audit Unit. The Right of Way Special Projects 
Administrator Consultant Coordinator with the 
concurrence of the Manager of Right of Way 
shall approve the final fee. 

If acceptable contract cannot be negotiated, ne- 
gotiations will be terminated, the firm will be 
notified in writing and the next listed firm shall 
be contacted to initiate negotiations for the work. 

(1) Board of Transportation approval and exe- 
cution of contract. Upon completion of final 
negotiations, the firm shall execute a minimum 
of two contract originals. 

The contract shall then be submitted to the State 
Highway Administrator who may consult with 
the Advisory Budget Commission pursuant to 
G.S. 136-28. 1(f). The proposed contract will 
then be submitted to the Board of Transporta- 
tion for approval. 

Upon approval by the Board of Transportation 
the contract will be executed by the Manager of 
Right of Way and returned to the Right of Way 
Special Proj e cts Administrator Consultant Co- 
ordinator. The Right of Way Special Projects 
Administrator Consultant Coordinator will 
transmit one original contract to the contracting 
firm and shall retain one in the project file. A 
copy of the contract will be provided to the 
Manager of the Program and Policy Branch, 
copy to be the Department's Fiscal Section and 
copy to the Federal Highway Administration 
when federal-aid funds are involved. 

(m) Sub-contracting. A contracting firm may 
sublet portions of the work proposed in the 
contract only upon approval of the Right of Way 
Special Projects Administrator Consultant Co- 
ordinator. 

The responsibility for procuring a subcontractor 
and assuring the acceptable performance of the 
work lies with the prime contractor. Also, the 
prime contractor will be responsible for submit- 
ting the proper supporting data to the Contract 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



,S59 



PROPOSED RULES 



Administrator for all work that is proposed to 
be sublet, 
(n) Methods of compensation: 

( 1 ) Lump Sum - This method of compen- 
sation is suitable for contracts where the 
amount and character of required work 
or services can be clearly defined and un- 
derstood by both the Department and the 
contracting firm. 

(2) Cost Plus Fixed Fee - This method of 
compensation is suitable for contracts 
where the general magnitude of work is 
known but the scope of work or period 
of performance cannot be defined clearly 
and the Department needs more flexibility 
in expediting the work without excessive 
amendments to the contract. 

(3) Cost Per Unit of Work - This method of 
compensation is suitable for contracts 
where the magnitude of work is uncertain 
but the character of work is known and a 
cost of the work per unit can be deter- 
mined accurately. 

(4) Cost Plus a Percentage of Cost - This 
method of compensation shall not be 
used. 

(o) Administration of contract. The adminis- 
tration of the contract shall be the responsibility 
of the Right of Way Sp e cial Projects Ad minis 
trator Consultant Coordinator. This will include 
the review of invoices and recommendation for 
payment to the Fiscal Section. 

(p) Contract .Amendments. Each contract 
should contain procedures for contract modifica- 
tions and define what changes are permitted by 
mutual agreement of the parties involved and the 
changes that can only be made by means of a 
contract amendment. 

The Right of Way Special Projects Administrator 
Consultant Coordinator with the concurrence of 
the Manager of Right of Way may authorize 
changes involving minor details of clarifications, 
changes in time schedules, and other changes of 



a minor nature which do not cause a significant 
change in the scope of work, or which causes a 
change in the amount of compensation must be 
accomplished by contract amendment. For 
contracts which use federal funds a compensation 
for services, the contract amendment must be 
approved by the Federal Highway Adminis- 
tration. No work is to be performed by the 
contracting firm on additional or disputed items 
until the dispute is resolved and/or a contract 
amendment is executed. 

Contract amendments shall be processed using 
the same procedures as described in Subpara- 
graphs (b)(10) and (b)(ll) of this Rule. 

(q) Monitoring of work. The responsibility for 
monitoring the work, the schedule and perform- 
ing reviews at intermediate stages of the work 
shall rest with the Right of Way Sp e cial Projects 
Administrator Consultant Coordinator. 

(r) Final payment. When it is determined that 
the work is complete, the final invoice shall be 
approved by the Right of Way Special Projects 
Administrator Consultant Coordinator and for- 
warded to the Fiscal Section with a recommen- 
dation for payment. When the contract is 
terminated by the Department, the final payment 
shall be for that portion of work performed. 

(s) Termination of contracts. All contracts 
shall include a provision for the termination of 
the contract by the Department with prior notice 
to the contracting firm. 

(t) Quarterly report. A quarterly report on the 
use of outside firms will be submitted to the 
Right of Way Branch Manager. This report shall 
be prepared by the Right of Way Special Projects 
Administrator Consultant Coordinator and will 
be in chart graphic or other appropriate format. 
Copies shall be provided to the State Highway 
Administrator and the Assistant State Highway 
Administrator. 

Statutory Authority G.S. 1 36-28.1 (f). 



S60 



:S NORTH CAROLINA REGISTER July 15, 1992 





RRC OBJECTIONS 








1 he Rules Review Commission (RRC) objected to the following rules in accordance 


with G.S. 




J43B-30.2(c). State agencies are required to respond to RRC as provided in G.S. I43B-30.2(d). 




AGRICULTURE 








Food and Drug Protection 








2 NCAC 9L .0509 - Consultant's Educational and Experience Reqmnts 


RRC Objection 


05]2l'i92 




Agency Revised Rule 


Obj. Removed 


05/2/192 




Plant Industry 








2 NCAC 48 A .0239 - Permit to Sell Bees 


RRC Objection 


04,16192 




Agency Revised Rule 


Obj. Removed 


04,16192 




2 NCAC 48 A .0240 - Form BS-II 


RRC Objection 


04, 16,92 




Agency Revised Rule 


Obj. Removed 


04,16:92 




2 NCAC 48A .061 1 - Program Participation and Payment of Fees 


RRC Objection 


04,16]92 




Agency Revised Rule 


Obj. Removed 


04; 16',92 




ECONOMIC AND COMMUNITY DEVELOPMENT 








Banking Commission 








4 NCAC 3C .0807 - Subsidiary Investment Approval 


RRC Objection 


04, 16192 




Agency Revised Rule 


Obj. Removed 


04,16192 




4 NCAC 3C .0901 - Books and Records 


RRC Objection 


04 16192 




Agency Revised Rule 


Obj. Removed 


04,16192 




4 NCAC 3C .0903 - Retention: Reproduction,' Disposition of Bank Records 


RRC Objection 


04,16192 




Agency Revised Rule 


Obj. Removed 


04, 16192 




4 NCAC 3D .0302 - Administration of Fiduciary Powers 


RRC Objection 


04, I6',92 




Agency Revised Rule 


Obj. Removed 


04,16 ! ,92 




4 NCAC 3H .0102 - Regional Bank Holding Company Acquisitions 


RRC Objection 


04; 16192 




Agency Revised Rule 


Obj. Removed 


04, 16, 92 




Board of Alcoholic Control 








4 NCAC 2R .0701 - Standards for Commission and Employees 


RRC Objection 


05 21 ,'92 




Agency Revised Rule 


Obj. Removed 


05,21192 




4 NCAC 2R .0702 - Disciplinary Action of Employee 


RRC Objection 


05,21',92 




Rule Returned to Agency 




06, 18;92 




4 NCAC 2R .1008 - Conflicts of Interest 


RRC Objection 


05.21192 




Agency Revised Rule 


Obj. Removed 


05,21',92 




4 NCAC 2R .1205 - Closing of Store 


RRC Objection 


05,21:92 




Agency Repealed Rule 


Obj. Removed 


06;18;92 




4 NCAC 2S .0/02 - Applications for Permits: General Provisions 


RRC Objection 


05,21192 




Agency Revised Rule 


Obj. Removed 


05,21,92 




4 NCAC 2S .0/06 - Special Requirements for Hotels 


RRC Objection 


05, 21 92 




Agency Revised Rule 


Obj. Removed 


05,21192 




4 NCAC 2S .0503 - Pre-Orders 


RRC Objection 


05 21 92 




Rule Returned to Agency 




06, 18, 92 




4 NCAC 2S .0527 - Guest Rooms Considered Residence 


RRC Objection 


05 21 92 




Agency Revised Rule 


Obj. Removed 


05,21:92 




7:8 NORTH CAROLINA REGISTER July 


15, 1992 


S61 



RRC OBJECTIONS 



4 NCAC 2S .0529 - Mixed Beverages Catering Permits in "Dry Areas" RRC Objection 05; 2 1 192 

Agency Revised Rule Obj. Removed 0521/92 

4 NCAC 2S .1008 - Advertising of Malt Beverages and Wine by Retailers RRC Objection 05,21/92 

Agency Revised Rule Obj. Removed 05,21192 

Community Assistance 

4 NCAC 19L .0103 - Definitions RRC Objection 04, 16/92 

Agency Revised Rule Obj. Removed 04; 16/92 

4 NCAC 19L .0403 - Size and Use of Grants Made to Recipients RRC Objection 04,16/92 

Agency Revised Rule Obj. Removed 05,21/92 

4 NCA C 19L .0407 - General Application Requirements RRC Objection 04; 16/92 

Agency Revised Rule Obj. Removed 05,21/92 

4 NCAC I9L .1301 - Definition RRC Objection 04, 16/92 

Agency Revised Rule Obj. Removed 04/16,92 

Savings Institutions Division: Savings Institutions Commission 

4 NCAC 16F .0001 - Permitted Activities RRC Objection 04 16/92 

Agency Revised Rule Obj. Removed 04 16/92 

4 NCAC 16F .0008 - Finance Subsidiary Fransaclions With Parent RRC Objection 04,16/92 

Agency Revised Rule Obj. Removed 04, 16,92 

4 NCAC 16F .0009 - Issuance of Securities by Finance Subsidiaries RRC Objection 04, 16/92 

Agency Revised Rule Obj. Removed 04, 16; 92 

4 NCAC 16F .001 1 - Holding Company Subsidiaries; Finance Subsidiaries RRC Objection 04 16/92 

Agency Revised Rule Obj. Removed 04 16/92 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management 

15.4 NCAC 7H .0306 - General Use Standards for Ocean Hazard Areas RRC Objection 0521/92 

Rule Returned to Agency 06, 18/92 

Departmental Rules 

15A NCAC 1J .0204 - Loans from Emergency Revolving Loan Accounts RRC Objection 06/8/92 

15A NCAC U .0302 - General Provisions RRC Objection 06 18, 92 

15A NCAC U .0701 - Public Necessity: Health: Safety and Welfare RRC Objection 06, 18,92 



Environmental Health 

15A NCAC 18 A .3101 - Definitions 
Agency Revised Rule 

Environmental Management 



RRC Objection 
Obj. Removed 



06 18,92 
06,18/92 



15.4 NCAC2B .010/ - General Procedures RRC Objection 

Agency Revised Rule Obj. Removed 

15.4 NCAC 2B .0104 - Considerations in Assigning Water Supply Class RRC Objection 

Agency Revised Rule Obj. Removed 

15A NCAC 2B .0202 - Definitions RRC Objection 

Agency Revised Rule Obj. Removed 
/5.4 NCAC 2B .021 1 - Fresh Surface Water Classifications and Standards RRC Objection 

Agency Revised Rule Obj. Removed 

15.4 NCAC 2B .0301 - Classifications: General RRC Objection 



05 21/92 
05 21,92 
05. 2 1,92 
05 21,92 
05 21/92 
05 21/92 
05 21,92 
05 21 92 
05 21/92 



862 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



RRC OBJECTIONS 






Agency Revised Rule 


Obj. Removed 


05/21/92 


ISA NCAC 20 .0302 - Self Insurance 


RRC Objection 


06/18/92 


Health: Epidemiology 






ISA NCAC 19H .0601 - Birth Certificates 


RRC Objection 


06/18/92 


Agency Revised Rule 


Obj. Removed 


06/18/92 


Radiation Protection 






ISA NCAC II .0338 - Specific Terms and Conditions of Licenses 


RRC Objection 


04/16/92 


Agency Revised Rule 


Obj. Removed 


04/16/92 


I5A NCAC II .0339 - Expiration of Licenses 


RRC Objection 


04/16/92 


Agency Revised Rule 


Obj. Removed 


04/16/92 


Soil and Water Conservation 






I5A NCAC6E .0007 - Cost Share Agreement 


RRC Objection 


06/18/92 


Agency Revised Rule 


Obj. Removed 


06/18/92 


Wildlife Resources and Water Safety 






ISA NCAC I0E .0004 - Use of Areas Regulated 


RRC Objection 


06/18/92 


HUMAN RESOURCES 






Day Care Rules 






10 NCAC 46 D .0305 - Administration of Program 


RRC Objection 


06/18/92 


Agency Revised Rule 


Obj. Removed 


06/18/92 


10 NCAC46D .0306 - Records 


RRC Objection 


06/18/92 


Agency Revised Rule 


Obj. Removed 


06/18/92 


Facility Services 






10 NCAC 3J .2801 - Supervision 


RRC Objection 


04/16/92 


Agency Revised Rule 


RRC Objection 


04/16/92 


Agency Revised Rule 


Obj. Removed 


05/21/92 


10 NCAC 3 J .3401 - Applicability - Construction 


RRC Objection 


04/16/92 


Agency Revised Rule 


RRC Objection 


04/16/92 


10 NCAC 3L .0902 - License 


RRC Objection 


04/16/92 


Agency Revised Rule 


Obj. Removed 


04/16/92 


10 NCAC 3L .0903 - Application for and Issuance of License 


RRC Objection 


04/16/92 


Agency Revised Rule 


Obj. Removed 


04/16/92 


10 NCAC 3L .0904 - Inspections 


RRC Objection 


04/16/92 


Agency Re\ised Rule 


Obj. Removed 


04/16/92 


10 NCAC 3L .0905 - Multiple Premises 


RRC Objection 


04/16/92 


Agency Revised Rule 


Obj. Removed 


04/16/92 


10 NCAC 3L .1202 - Case Review and Plan of Care 


RRC Objection 


04/16/92 




Obj. Removed 


05/21/92 


Mental Health: General 






10 NCAC 14U .0704 - Program Director 


RRC Objection 


05/21/92 


Agency Revised Rule 


Obj. Removed 


06/18/92 


7:8 NORTH CAROLINA REGISTER 


July 15, 1992 


$63 



RRC OBJECTIONS 



INSURANCE 

Agent Services Division 

// NCAC 6 A .0802 - Licensee Requirements 
Agency Revised Rule 

Departmental Rules 

// NCAC I .0/06 - Organization of the Department 
Agency Revised Rule 

Multiple Employer Welfare Arrangements 

// NCAC IS .00/9 - Description of Forms 

Seniors' Health Insurance Information Program 

// NCAC 17 .0005 - SI! I IP Inquiries to Insurers and Agents 

LABOR 

Elevator and Amusement Device 

13 NCAC 15 .0402 - Responsibility for Compliance 

Agency Revised Rule 
13 NCAC 15 .0429 - Go Karts 

Agency Revised Rule 

LICENSING BOARDS AND COMMISSIONS 

Cosmetic Art Examiners 

21 NCAC 14N .0107 - Special Arrangements for Disabled 
Agency Revised Rule 

Dietetics Nutation 

21 NCAC 17 .0002 - Requirement of License 

Agency Revised Rule 
21 NCAC 17 .0003 - Qualifications for Licensure 

Agency Revised Rule 
21 NCAC 17 .0004 - Applications 

Agency Revised Rule 
21 NCAC 17 .0005 - Examination for Licensure 

Agency Revised Rule 
21 NCAC 17 .0007 - Provisional License 

Agency Revised Rule 
21 NCAC 17 .00/2 - Suspension, Revocation and Denial of License 

Agency Revised Rule 
21 NCAC 17 .0014 - Code of Ethics for Professional Practice 1 Conduct 

Agency Revised Rule 

Agency Revised Rule 

Nursing 

21 NCAC 36 .0301 - Approval Body 



RRC Objection 05/21/92 
Obj. Removed 05/21/92 



RRC Objection 06', 18/92 
Obj. Removed 06; 18/92 



RRC Objection 06/18/92 



RRC Objection 06/18/92 



RRC Objection 04:16/92 

Obj. Removed 05/21/92 

RRC Objection 04 16192 

Obj. Removed 04/16/92 



RRC Objection 05/21 !92 
Obj. Removed 05/21/92 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
Obj. Removed 



05:21192 
05 21/92 
05/21:92 
05/21/92 
05! 21:92 
05/2L92 
05 21 '92 
05 21/92 
05 21J92 
05 21,92 

05 2 1 : 92 
05,21:92 
0512/192 
05 21:92 

06 18 '92 



RRC Objection 05:21/92 



864 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



RRC OBJECTIONS 



Agency Revised Rule Obj. Removed 05121/92 
TATE PERSONNEL 
Dffice of State Personnel 

25 NCAC 111 .0603 - Special Recruiting Programs RRC Objection 05/21/92 

Agency Repealed Rule Obj. Removed 06/18/92 

25 NCAC I J .1005 - Eligibility for Services RRC Objection 05/21/92 

Agency Revised Rule Obj. Removed 06/ 18; 92 



7:8 NORTH CAROLINA REGISTER July 15, 1992 865 



RULES INVALIDA TED BY JUDICIAL DECISION 



1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 
Court of Appeals. Superior Court (when available), and the Office of Administrative Hearings which 
invalidate a rule in the North Carolina Administrative Code. 



1 NCAC5A .0010 - AD.MIMSTRA THE PROCEDURES 

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared two 
portions of Rule 1 NCAC 5A .0010 void as applied in Stauffer Information Systems, Petitioner v. The 
North Carolina Department of Community Colleges and The North Carolina Department of Adminis- 
tration, Respondent and The University of Southern California, Intervenor- Respondent (92 DOA 0666). 



S66 7:S NORTH CAROLINA REGISTER July 15, 1992 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge 
decisions along with an index to all recent contested cases decisions which are filed under 
North Carolina's Administrative Procedure Act. Copies of the decisions listed in the index 
and not published are available upon request for a minimal charge by contacting the Office 
of Administrative Hearings, (919) 733-2698. 



KEY TO CASE CODES 



ABC Alcoholic Beverage Control Com- 
mission 

BDA Board of Dental Examiners 

BME Board of Medical Examiners 

BMS Board of Mortuary Science 

BOG Board of Geologists 

BON Board of Nursing 

BOO Board of Opticians 

CFA Commission for Auctioneers 

COM Department of Economic and Com- 
munity Development 

CPS Department of Crime Control and 

Public Safety 

CSE Child Support Enforcement 

DAG Department of Agriculture 

DCC Department of Community Colleges 

DCR Department of Cultural Resources 

DCS Distribution ChUd Support 

DIIR Department of Human Resources 

DOA Department of Administration 

DOJ Department of Justice 

DOL Department of Labor 

DSA Department of State Auditor 

DST Department of State Treasurer 



EDC 
EHR 

ESC 
HAF 

HRC 

IND 

INS 

LBC 

MLK 

NHA 

OAH 

OSP 
PHC 

POD 

SOS 

SPA 



WRC 



Department of Public Instruction 
Department of Environment, Health, 
and Natural Resources 
Employment Security Commission 
Hearing Aid Dealers and Fitters 
Board 

Human Relations Commission 
Independent Agencies 
Department of Insurance 
Licensing Board for Contractors 
Milk Commission 

Board of Nursing Home Administra- 
tors 

Office of Administrative I learings 
Department of State Personnel 
Board of Plumbing and Heating 
Contractors 

Board of Podiatry Examiners 
Department of Secretary of State 
Board of Examiners of Speech and 
Language Pathologists and Audiol- 
ogists 
Wildlife Resources Commission 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 

HATE 


Alyce W. Pringle 

v. 

Department of Education 


88 OSP 0592 
88 FFO 0992 


Morgan 


03 27 92 


Susie Woodle 

v. 

Department of Commerce, State Ports Authority 


88 OSP 1411 


Mann 


03/25/92 


Fernando Demeco White 

v. 

DIIR, Caswell Center 


89 OSP 0284 


West 


01 10.92 


Cathy Eaye Barrow 

v. 

DIIR, Craven County Health Department 


89 DIIR 0715 


Morgan 


03 09,92 


Barbara Trivette 

v. 

Department of Correction 


90 OSP 0133 


Morgan 


05 20. 92 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



867 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NLMBER 


ALJ 


FILED 
DATE 


Kenneth W. White 

v. 

Employment Security Commission 


90 OSP 0390 


Becton 


01/13/92 


Craig S. Eury 

v. 

Employment Security Commission 


90 OSP 0391 


Becton 


01/13/92 


Hattie J. Blue 

v. 

Department of Public Instruction 


90 OSP 0418 
90 OSP 0516 


Morgan 


06/19/92 


Jolene H. Johnson 

v. 

DHR, Division of Medical Assistance 


90 DHR 0685 


Morgan 


02/21/92 


Dover W. Walker 

v. 

Department of Environment, Health, & Natural Resources 


90 OSP 0873 

91 OSP 0180 


Chess 


05 06/92 


Joseph F. Nunes 

v. 

DHR, Division of Social Services, CSE 


90 CSE 1036 


Morgan 


04/15/92 


Sgt. Carl Edmunds 

v. 

DHR, Division of Social Services, CSE 


90 CSE 1135 


Nesnow 


02/04/92 


Rafael Eigueroa 

v. 

DHR, Division of Social Services, CSE 


90 CSE 1138 


Morgan 


03/30/92 


Sammie L. Frazier 

v. 

DHR, Division of Social Services, CSE 


90 CSE 1167 


Morgan 


03/24/92 


Melvin A. Edwards 

v. 

Department of Correction 


90 OSP 1175 


Nesnow 


06/09/92 


Richard A. Boyett 

v. 

DHR, Division of Social Services, CSE 


90 CSE 1184 


Morgan 


03/30/92 


Lance McQueen 

v. 

DHR, Division of Social Services, CSE 


90 CSE 1204 


Morgan 


03/30/92 


Kermit Linney 

v. 

Department of Correction 


90 OSP 1380 


Morrison 


02/12/92 


Larry D. Oates 

v. 
Department of Correction 


90 OSP 1385 


Becton 


04 06 92 


Antonio S. Henderson 

v. 

DHR, Division of Social Services. CSE 


90CSF 1391 


Becton 


05/04/92 


Fernando Guarachi 

v. 

DHR, Division of Social Services, CSE 


90 CSE 1393 


Morgan 


04/07/92 



868 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Jerry Odell Johnson 

v. 

Sheriffs' Education & Training Standards Comm 


90DOJ 1411 


Morgan 


01.09 92 


Stoney W. & Darlene L. Thompson 

v. 

Department of Environment, Health, & Natural Resources 


91 EHR 0003 


West 


01 06 92 


Gloria Jones/ Medbill 

v. 

Children Special Health Sen ices 


91 EHR 0142 


Morgan 


03/11/92 


Shonn S. Peek 

v. 

Bd of Trustees Teachers' & St Emp Retirement Sys 


91 DST0147 


Gray 


04 16 92 


Willie C. Rone 

v. 

DHR, Division of Social Services, CSE 


91 CSE 0166 


Morgan 


04.13,92 


Thomas Such 

v. 

EHR and William W. Cobey Jr. 


91 OSP0202 


Becton 


02 20 92 


N.C. Human Relations Comm. on behalf of Deborah Allen 

v. 
Charles Watkins 


91 HRC 0204 


Morrison 


03 17 92 


Cindy Gale Hyatt 

v. 

Department of Human Resources 


91 DHR 0215 


Morgan 


02 27 92 


Gliston L. Monisey 

v. 

Bd of Trustees Teachers' & St Emp Retirement Sys 


91 DST 0232 


West 


02 03 92 


Anthony Caldwell 

v. 

Juvenile Evaluation Center 


91 OSP 0259 


Morgan 


03 12 92 


Kenneth R. Downs, Guardian of 

Mattie M. Greene 

v. 

Teachers' & St Emp Comp Major Medical Plan 


91 DST 0261 


Gray 


02 20 92 


Galen E. Ncwsom 

v. 

Department of Correction 


91 OSP 0282 


Becton 


06 08 92 


Deborah W. Clark 

v. 

DHR, Dorothea Dix Hospital 


91 OSP 0297 


Nesnow 


01 16 92 


Wade R. Bolton 

v. 

DHR, Division of Social Services, CSE 


91 CSE 0312 


Mann 


01 14 92 


Betty L. Rader 
v. 

Teachers' & St Emp Major Medical Plan 


91 DST 0330 


Morgan 


01 10 92 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



S69 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Marcia Carpenter 

v. 
L'NC - Charlotte 


91 OSP0346 


Mann 


03/12/92 


James Arthur Lee 

V. 

NC Crime Victims Compensation Commission 


91 CPS 0355 


Chess 


03 05/92 


Britthaven, Inc. d.'b/a Britthaven of Louisburg 

v. 

DHR, Division of Facility Services, Licensure Section 


91 DHR 0360 


Morgan 


06/04/92 


Dora P. Lewis 

v. 

DHR (Disability Determination Services) 


91 OSP0394 


Nesnow 


06/24/92 


Fred A. Wilkie 

v. 
Wildlife Resources Commission 


91 OSP 0398 


Chess 


04/20/92 


Michael Darwin White 

v. 

Department of Environment, Health, & Natural Resources 


91 OSP 0413 


Morrison 


02 14/92 


Curtis Wendell Bigelow 

v. 

CCPS. Division of State Highway Patrol 


91 OSP 0418 


West 


03/10/92 


Alcoholic Beverage Control Commission 
v. 

Hilsinger Enterprises, Inc.. t a The Waterin Hole 


91 ABC 0442 


Gray 


01 10/92 


Penny Whitfield 

v. 

Pitt County Mental Health Center 


91 OSP 0465 


Gray 


01 08/92 


Fric D. Pender 
v. 

Department of Crime Control & Public Safety 


91 OSP 0466 


Becton 


06 19/92 


Senior Citizens' Home Inc. 

v. 

DHR, Division of Facility Services, Licensure Section 


91 DHR 0467 


Gray 


02 18/92 


Alcoholic Beverage Control Commission 

v. 

Everett Lee Williams Jr., t a Poor Boys Gameroom 


91 ABC 0531 


Morrison 


01/31/92 


Jonathan Russell McCravey, t/a Encore 

v. 
Alcoholic Beverage Control Commission 


91 ABC 0534 


Morrison 


02 04/92 


Dorothy "Cris" Crissman 

v. 

Department of Public Instruction 


91 OSP 0581 


Morrison 


04 03/92 


Horace Britton Askew Jr. 
v. 

Sheriffs' Education & Training Standards Comm 


91 DOJ 0610 


Reilly 


01 22 92 


Roy L. Keever 

v. 
Department of Correction 


91 OSP 0615 


West 


02 26/92 



870 



:8 NORTH CAROLINA REGISTER July 15, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Ten Broeck Hospital (Patient #110587, 

Medicaid #124-24-4801-C) 
Ten Broeck Hospital (Patient #110538, 

Medicaid #240334254S) 
Ten Broeck Hospital (Patient #1 10788, 
Medicaid #900- 12-6762-T) 
v. 
DHR, Division of Medical Assistance 


91 DHR 0618 
91 DHR 0429 
91 DHR 1265 


Morrison 


04/08/92 


Larry Madison Chatman, t/a Larry's Convenient Store 

v. 
Alcoholic Beverage Control Commission 


91 ABC 0626 


Gray 


02/20/92 


Denny W. Purser 

v. 

East Carolina University, N.C. State Health Plan 


91 INS 0632 


Becton 


06/12/92 


Lester L. Baker Jr. 

v. 
Bd of TrusteesZ/Teachers'St Employees' Retirement Sys 


91 DST 0639 


Becton 


05/28/92 


Cecil Leon Neal 

v. 
Department of Economic & Community Development 


91 OSP 0648 


Mann 


02,07/92 


DAG, Food & Drug Protection Div, Pesticide Section 

v. 
D. Carroll Vann 


91 DAG 0654 


Morrison 


01/15/92 


Kidd's Day Care and Preschool 

v. 

Child Day Care Section 


91 DHR 0666 
91 DHR 0666 


Becton 


03/25/92 
04/10/92 


Mary Tisdale 

v. 

Hyde County Health Department and HHR 


91 EHR 0679 


Morgan 


03/23/92 


Alcoholic Beverage Control Commission 

v. 

Kenneth Richard Cooper, t/a Silvers 


91 ABC 0680 


Becton 


02/26/92 


Sarah Linda Hankins 

v. 

Alcoholic Beverage Control Commission 


91 ABC 0688 


Mann 


02/27/92 


Keith Hull 

v. 

DHR - Division of Medical Assistance 


91 DHR 0707 


Chess 


02/27/92 


The Carrolton of Williamston, Inc. 

v. 

DHR, Division of Facility Services, Licensure Section 


91 DHR 0740 


Morgan 


06/04/92 


Alcoholic Beverage Control Commission 

v. 

Spring Garden Bar & Gnll Inc., 

T A Spring Garden Bar & Grill 


91 ABC 0753 


Morrison 


05/08/92 


Nalley Commercial Properties 

v. 

Department of Environment, Health. & Natural Resources 


91 EHR 0757 


Becton 


05/08/92 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



871 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


John E. Canup 

v. 

DHR, Division of Social Services, CSE 


91 CSE 0759 


Reilly 


01/13/92 


Falcon Associates, Inc. 

v. 

Department of Environment, Health, & Natural Resources 


91 EHR 0767 
91 EHR 0768 


West 


01/06/92 


Michael F. Stone 

v. 

Bd of Trustees/ Local Govt Emp Retirement Sys 


91 DST 0771 


West 


02/24/92 


Ruben Gene McLean 

v. 

Alcoholic Beverage Control Commission 


91 ABC 0772 


Nesnow 


01,30/92 


Daniel W. Sherrod 

v. 

DHR, 0' Berry Center 


91 OSP0791 


Mann 


06/09/92 


Bobby McEachem 

v. 

Fayetteville State University 


91 OSP0839 


Gray 


02,06/92 


Singletree, Inn 

v. 

EHR, and Stokes County Health Department 


91 EHR 0840 


Nesnow 


01/16 92 


Henry B. Barnhardt 

v. 

Mt Pleasant Vol Fire Dept, St Auditor Firemen's 

Rescue Squad Workers' Pension Fund 


91 DSA0843 


Reilly 


01/29/92 


Mackey L. Hall 

v. 
DHR, Division of Social Services, CSE 


91 CSE 0854 


Reilly 


01/17,92 


Gloria J. Woodard 

v. 

Division of Motor Vehicles 


91 OSP0855 
91 OSP 0S55 


Mann 


04/09/92 

04 13 92 


Kay Long 

v. 

Department of Human Resources 


91 DHR 0873 


Reilly 


03 1792 


Alcoholic Beverage Control Commission 

v. 

Mack Ray Chapman, t a Ponderosa Lounge 


91 ABC 0887 


Morrison 


01 31,92 


Joseph W. Devlin Jr., Johnson Brothers Carolina Dist 

v. 
Alcoholic Beverage Control Commission 


91 ABC 0890 


West 


02/11/92 


Ossie Beard 

v. 

EHR & Wastewater Treatment Plant Certification Comm. 


91 EHR 0893 


Nesnow 


03/12/92 


Almetta Tyson 

v. 

Pitt Count) Board of Education 


91 EDC 0897 


Morrison 


06 19 92 



872 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



CONTESTED CASE DECISIONS 





CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Thomas A. Ritter 

v. 

Department of Human Resources 


91 OSP 0907 


Mann 


05/19/92 


Alcoholic Beverage Control Commission 

v. 

Trinity C. C, Inc., t/a Trinity College Cafe 


91 ABC 0915 


West 


02/11/92 


N.C. Alcoholic Beverage Control Commission 

v. 

Jessie Pendergraft Rigsbee, T/A Club 2000 


91 ABC 0919 


West 


03/12/92 


Alcoholic Beverage Control Commission 

v. 

Cedric Warren Edwards, t/a Great, American Food Store 


91 ABC 0923 


Becton 


02/26/92 


Department of Environment, Health, & Natural Resources 

v. 
Hull's Sandwich Shop, Andy Hull 


91 EHR 0936 


West 


01/09/92 


Benjamin C. Dawson 

v. 

Department of Correction, Central Prison 


91 OSP 0942 


West 


06/11/92 


Betty Davis d/b/a ABC Academy 

v. 

DHR, Division of Facility Services, Child Day Care Section 


91 DHR 0955 


Mormon 


01/31/92 


Thomas J. Hailey 

v. 

EHR and Rockingham County Health Department 


91 EHR 0957 


Becton 


01/ 15 '92 


Ronald Waverly Jackson 

v. 

EHR, Division of Maternal & Child Health, WIC Section 


91 EHR 0963 


Gray 


02/24/92 


Century Care of Eaurinburg, Inc. 

v. 

DHR, Division of Facility Services, Licensure Section 


91 DHR 0981 


Gray 


03/24/92 


James K. Moss Sr. 

v. 

DHR, Division of Social Services, CSE 


91 CSE 0985 


Reilly 


05/18/92 


David J. Anderson 

v. 

DHR, Division of Social Services, CSE 


91 CSE 0989 


Morgan 


04/20/92 


David Lee Watson 

v. 

DHR, Division of Social Services, CSE 


91 CSE 0992 


Reilly 


05/18/92 


Herbert R. Clayton 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1000 


Mann 


04/02/92 


Roy Shealey 

v. 
Victims Compensation Commission 


91 CPS 1002 


Morrison 


01/31/92 


Joe L. Williams Jr. 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1014 


Morrison 


04/30/92 





7:8 NORTH CAROLINA REGISTER July 15, 1992 



S73 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Willie Brad Baldwin 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1020 


Reilly 


01 28:92 


Clinton Dawson 

v. 

N.C. Department of Transportation 


91 OSP 1021 


Mann 


03 05 92 


Benjamin C. Dawson 

v. 

Department of Correction 


91 OSP 1025 


West 


02 18 92 


Paulette R. Smith 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1026 


Reilly 


02 27 92 


Scot Dawson 

v. 

Department of Labor 


91 DOL 1031 


West 


02 24 92 


Luis A. Rosario 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1046 


Morrison 


03 03 92 


Elijah Jefferson Jr. 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1055 


Gray 


04 20 92 


Randy Quinton King 

v. 

CCPS, State Highway Patrol 


91 OSP 1064 


Gray 


03 24 92 


Ronnie C. Glenn 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1066 


Nesnow 


05 05 92 


James D. Robinson 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1068 


Gray 


04 29 92 


William H. Hogsed 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1070 


Nesnow 


03 16 92 


David L. Brown 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1074 


Morrison 


03 31 92 


Gary A. Hamper 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1077 


Morrison 


06 03 92 


Donald M. Washington 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1078 


Morrison 


03 04 92 


William F. Driscoll 

v. 

DHR. Division of Social Services, CSE 


91 CSE 10S0 


Mann 


04 28 92 


Melvin L. Miller Sr. 

v. 

DHR. Division of Social Services, CSE 


91 CSE 10S4 


Morrison 


03 16 92 



874 



:S NORTH CAROLINA REGISTER July 15, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Bio-Medical Applications of North Carolina, Inc., 

D/B/A BMA of Lenoir 

v. 

Certificate of Need Section, Div of Facility Services, DHR 

and 

Charlotte Artificial Kidney Clinic, Inc. and 

Delta Medical Properties 


91 DHR 1086 


Reilly 


06/22/92 


Charlotte Artificial Kidney Clinic, Inc. and 

Delta Medical Properties 

v. 

Certificate of Need Section, Div of Facility Services, DHR 

and 

Bio-Medical Applications of North Carolina, Inc., 

d b a BMA Lenoir 


91 DHR 1089 


Reilly 


06/22/92 


Bobby G. Evans 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1094 


Reilly 


01 13 92 


William Louis Timmons 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1104 


Mann 


02 IS 92 


• Gerald Richardson 
v. 
DHR. Division of Social Services, CSE 


91 CSE 1112 


Morgan 


05/06/92 


Edmund D. Hester 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1113 


Mann 


04 21/92 


Raymond Junior Cagle 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1123 


Mann 


03 30 92 


Richard F. Murray 

v. 
Department of Human Resources 


91 CSE 1134 


Reilly 


01 13 92 


Patina Miller 

v. 

DHR, Division of Facility Services, Child Day Care Section 


91 DHR 1135 


Mann 


03 31 92 


Atlantic Enterprises, Inc. 

v. 

Department of Environment, Health. & Natural Resources 


91 FHR 1136 


Reilly 


01 23 92 


Theresa M. Sparrow 

v. 

Criminal Justice Education & Training Standards Comm 


91 DOJ 1138 


Mann 


02 04 92 


Darrel D. Shields 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1141 


Morgan 


03 30 92 


John H. Pnce 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1142 


Morgan 


05 06 92 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



875 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


\U 


FILED 
DATE 


Jerry Dexter Morrison Sr. 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1144 


Nesnow 


05/21/92 


James A. Hinson 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1154 


Mann 


02/18/92 


George H. Parks Jr. 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1157 


Morrison 


01/27/92 


L'nited Screen Printers, Inc. 

v. 

EHR, Division of Environmental Management 


91 EHR 1179 


Mann 


06/04/92 


Adrian Chandler Harley 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1180 


Nesnow 


02/10/92 


Billy J. Hall 

v. 
DHR. Division of Social Services, CSE 


91 CSE 1182 


Nesnow 


02,10/92 


Ralph YV. Burns 

v. 

DHR. Div of Social Services, CSE 


91 CSE 1185 


Morgan 


06/18/92 


Donaldson L. Wooten 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1189 


Reilly 


03/13/92 


William P. Reid 

v. 
DHR, Division of Social Services, CSE 


91 CSE 1193 


Nesnow 


02/04/92 


Jeddie R. Bowman 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1195 


Morrison 


04/30/92 


Ronald G. Bolden 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1208 


Gray 


02/26/92 


Wayne Phillip Irby 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1211 


Nesnow 


02/04/92 


Tony Hollingsworth 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1212 


Nesnow 


02/10/92 


Charles W. Norwood Jr. 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1215 


Mann 


05/19/92 


Russell G. Ginn 

v. 

Department of Correction 


91 OSP 1224 


Reilly 


02/14/92 


Allen Anthony 

v. 

DHR, Div of Social Services. CSE 


91 CSE 1226 


Nesnow 


06/18/92 



876 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Angela McDonald McDougald 

v. 

DIIR, Division of Social Services, CSE 


91 CSE 1227 


Nesnow 


02/28,92 


Sering O. Mbye 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1228 


Mann 


03/11/92 


Jimmie McNair, DBA. Pleasure Plus 

v. 
Alcoholic Beverage Control Commission 


91 ABC 1235 


Gray 


05/04/92 


Michael L. Braton 

v. 

DIIR, Division of Social Services, CSE 


91 CSE 1238 


Mann 


06/05/92 


Arthur Thomas McDonald Jr. 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1252 


Morrison 


03/31/92 


Stanford Earl Kern 

v. 

DIIR, Division of Social Services, CSE 


91 CSE 1255 


Nesnow 


02 04 92 


Gene Weaver 

v. 

DIIR, Division of Social Services, CSE 


91 CSE 1264 


Rcilly 


03 25 92 


James T. White 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1271 


Gray 


02/27/92 


Ronald Brown and Rcgina Brown 

v. 
DHR, Division of Facility Services 


91 DHR 1278 


Becton 


02/25/92 


Terrance Freeman 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1283 


Nesnow 


05/04/92 


Samuel Armwood 

v. 

David Brantley, Wayne County Clerk of Superior Court 


91 CSE 1285 


Reilly 


02 1 1 92 


Peter Gray Colcy 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1297 


Rcilly 


04 21/92 


Enos M. Cook 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1303 


Morrison 


04 13/92 


Raymond Vaughan 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1304 


Reilly 


0309/92 


Stevie Wayne Yates 

v. 

EHR and The Jones County Health Department 


91 EHR 1305 


Mann 


05 29/92 


Stanley Wayne Gibbs 

v. 

Elizabeth City State University 


91 OSP 1318 


Gray 


01 14 92 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



877 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Alex Page 

v. 

DHR, Division of Facility Services, CSE 


91 CSE 1323 


Reilly 


06/03/92 


Coleen Lynn Anderson 

v. 

Criminal Justice Education & Training Standards Comm 


91 DO J 1324 


Chess 


06/15/92 


David Martin Strode 

v. 

DHR, Division of Social Services. CSE 


91 CSE 1327 


Morgan 


03/19/92 


Mary" T. Blount 

v. 

FHR and Hyde County Health Department 


91 EHR 1331 


Reilly 


05/21/92 


Anthony T. McNeill 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1336 


Becton 


04/20/92 


Jeffrey Lynn Cook 

v. 

Crime Victims Compensation Commission 


91 CPS 1338 


Chess 


06/10/92 


D. C. Bass 

v. 
Department of Crime Control and Public Safety 


91 OSP 1341 


Chess 


04/07/92 


Wallace Day Care Center 

v. 

DHR, Division of Facility Services 


91 DHR 1343 


Nesnow 


05/04/92 


Steveason M. Bailey 

v. 

McDowell Technical Community College 


91 OSP 1353 


Morrison 


01/28/92 


Gary N. Rhoda 

v. 

Department of Correction 


91 OSP 1361 


Nesnow 


01/31/92 


William A. Sellers 

v. 

DHR. Division of Social Services. CSE 


91 CSE 1395 


Gray- 


04 01 92 


Marc D. Walker 

v. 

CCPS. Division of State Highway Patrol 


91 OSP 1399 


Morrison 


03/16/92 


Serena Gaynor 

v. 

DHR, Division of Vocational Rehabilitation 


91 OSP 1403 


Gray- 


03 02/92 


Betty Davis. DBA ABC Academy 

v. 

DHR. Division of Facility Services. Child Day Care Section 


91 DHR 1408 


Chess 


03/30/92 


Bill Jones Jr. and Jessie F. Jones 

v. 
Department of Human Resources 


91 DHR 1411 


Nesnow 


05 01 92 


Leroy Robinson, Frank's Lounge 

v. 

Alcoholic Beverage Control Commission 


91 ABC 1416 


Gray 


05/28 92 



878 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Charles R. Wellons II 

v. 

Department of Environment, Health, & Natural Resources 


91 EHR 1418 


West 


02/25/92 


Connie Flowers 

v. 

EHR and Hyde County Health Department 


91 EHR 1420 


Reilly 


05/21/92 


Charley Joe Milligan 

v. 

Bd of Trustees/Local Gov't Emp Retirement Sys 


91 DST 1424 


Gray 


02/27/92 


Roy Blalock, Deborah Eakins, John Gordon Wright 

v. 

UNC - Chapel Hill 


91 OSP 1429 
91 OSP 1430 


Gray 


03/13/92 


All States Asbestos Professionals 

v. 
EHR, Office of General Counsel 


91 EHR 1432 


Nesnow 


06/02/92 


James R. Eath 

v. 
Crime Victims Compensation Commission 


91 CPS 1451 


Morrison 


04/15/92 


Janet Thompson 

v. 

DHR, Div Facility Svcs, Durham Cty Dept 'Social Svcs 


91 DHR 1452 


Gray 


05, 19/92 


AB&S Exteriors (Arthur F. Williams Jr., Pres) 

v. 
Department of Labor, Wage & Hour Division 


92 DOL0001 


Chess 


05/18/92 


Ollic Robertson 

v. 

Crime Victims Compensation Commission 


92 CPS 0002 


Morrison 


04/15/92 


New Bern-Craven County Board of Education, 

a Statutory Corporation of North Carolina 

v. 

The Honorable Harlan E. Boylcs, State Treasurer, 

The Honorable Fred W. Talton, State Controller, 

The Honorable William W. Cobey, Jr., Sec. of EHR, 

Dr. George T. Everett, Dir., Div. of Environmental Mgmt. 


92 EHR 0003 


Reilly 


03/13/92 


Ellen Allgood, The Red Bear Lounge, Inc., 

4022 North Main St., High Point, NC 27265 

v. 

Alcoholic Beverage Control Commission 


92 ABC 0007 


Chess 


04/07/92 


Robert Gooden 

v. 

Department of Labor, Wage & Hour Division 


92 DOL 0009 


West 


05/1492 


Mrs. Gillie L. Edwards. Swift Mart #3 

v. 

EHR, Division of Maternal & Child Health, WIC Section 


92 EHR 0022 


Morrison 


05/18/92 


Private Protective Services Board 

v. 

Robert R. Missildine, Jr. 


92 DOJ 0025 


Becton 


03,23/92 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



879 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NLMBER 


AU 


FILED 
DATE 


Cindy G. Bartlett 

v. 

Department of Correction 


92 OSP 0029 


Reilly 


03.16/92 


Mr. Kenneth L. Smith, Pitt County Mart, Inc. 

v. 

EHR, Division of Maternal & Child Health, WIC Section 


92 EHR 0085 


Becton 


04 15/92 


Kurt Hafner 

v. 

N.C. Retirement System et al. 


92 DST 0094 


Gray 


03/04/92 


Margaret Coggins 

v. 

EHR. Division of Maternal & Child Health, WIC Section 


92 EHR 0095 


Becton 


04 28/92 


Roy Blalock, Deborah Eakins, John Gordon Wright 

v. 
UNC - Chapel Hill 


92 OSP 0096 


Gray 


03. 13/92 


Paula Dail 

v. 

EHR, Division of Maternal & Child Health, WIC Section 


92 EHR 0098 


Becton 


04 28/92 


Youth Focus, Inc. (MID # 239-23-0865T) 

v. 

DHR, Division of Medical Assistance 


92 DHR 0110 


Gray 


02 26/92 


Donald M. Condren 
v. 

Department of Environment, Health, & Natural Resources 


92 EHR 0115 


Chess 


05 28/92 


A.S. Pierce and Mary Lou Pierce Administrators, 

Tri-City Rest Haven 

v. 

DHR, Division of Facility Services, Licensure Section 


92 DHR 0118 


Gray 


06 16 92 


Merle M. Lee 
v. 

Department of Correction 


92 OSP 0167 


Reilly 


06 10 92 


Charles W. Parker 

v. 

Department of Agriculture 


92 OSP 0177 


Reilly 


04 27.92 


Potters Industries, Inc. 

v. 

William J. Stuckey, St Purchasing Off, 

& NC Div of Purchase & Contract 


92 DO A 0180 


Nesnow 


05 20/92 


Brunswick County 

v. 

Department of Environment, Health, &. Natural Resources 


92 EHR 0195 


Morrison 


04 21,92 


Jessie Draft, Owner Sabrina's Day Care Ctr 

v. 

Department of Human Resources 


92 DHR 0197 


Reilly 


06 01 92 


Connestee Falls Property Owners Assoc, Inc. 

v. 

Wildlife Resources Commission 


92 WRC 0207 


Chess 


05 28/92 



880 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



CONTESTED CASE DECISIONS 








CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


John Marley Jr. 

v. 

Department of Correction 


92 OSP 0213 


Reilly 


05/18/92 


N.C. Private Protective Services Board 

v. 

Lawrence Donnell Morrissey 


92 DOJ 0215 


Chess 


05/13/92 


N.C. Private Protective Services Board 

v. 

Sherrill David Beasley 


92 DOJ 0216 


Chess 


05/13/92 


Percy Lee Davis 

v. 

Caledonia Correctional Inst. 


92 OSP 0230 


West 


06/04/92 


Timothy B. Milton 

v. 

Crime Victims Compensation Commission 


92 CPS 0265 


Reilly 


05/18/92 


Leon Scott Wilkinson 

v. 

Criminal Justice Education & Training Standards Cornm 


92 DOJ 0280 


West 


04/24/92 


Thomas L. Rogers 

v. 

DHR, Division of Youth Services 


92 OSP 0287 


Gray 


04/30/92 


Larry A. Person Sr. 

v. 

Department of Transportation 


92 OSP 0304 


Reilly 


05/28/92 


Paul M. Fratazzi, LPN 

v. 

Polk Youth Institute 


92 OSP 0325 


Nesnow 


05/01/92 


Robert S. Scheer 

v. 

Department of Crime Control & Public Safety 


92 CPS 0339 


Gray 


05/18/92 


Jimmy Wayne Livengood 

v. 
Department of Correction 


92 OSP 0352 


Nesnow 


05/27/92 


Jeffrey Mark Drane 

v. 

Private Protective Services Board 


92 DOJ 0372 


Mann 


05/12/92 


Danny G. Hicks 
v. 

Private Protective Services Board 


92 DOJ 0373 


Mann 


05/12/92 


Max Bolick 

v. 

Private Protective Services Board 


92 DOJ 0374 


Mann 


05, 12/92 


Fred Henry Hampton 

v. 

Criminal Justice Education & Training Stds Cornm 


92 DOJ 0393 


West 


04 23 92 


Milton M. Maynard 

v. 
L'NC Chapel Hill NC 


92 OSP 0417 


West 


06/22 92 




7:8 NOR TH CAROLINA REGIS Ti 


^R July 15, 1 


992 


881 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Northvvood Nursing Center, Inc., 

d/b/a Northwood Manor 

v. 

DHR, Division of Facility Services, Licensure Section 


92 DHR 0426 


West 


06/16/92 


Herman James Goldstein 

v. 

University of North Carolina at Chapel Hill 


92 OSP 0472 


West 


06/23/92 


N.C. Alarm Systems Licensing Board 

v. 

Eddie Sisk 


92 DOJ 0495 


Nesnow 


06,04/92 


Bntthaven, Inc., d/b/a Britthaven of Raleigh 

v. 

DHR, Division of Facility Sen ices, Licensure Section 


92 DHR 1425 


Gray 


06/16/92 



882 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF PITT 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

91 INS 0632 



DENNY W. PURSER, 
Petitioner 



EAST CAROLINA UNIVERSITY, 
N.C STATE HEALTH PLAN, 
Respondent. 



RECOMMENDED DECISION 



This matter was heard before Brenda B. Becton, Administrative Law Judge, on May 1, 1992, in 
Greenville, North Carolina. The testimony of Dr. Paul Bondy was taken by deposition on March 16, 
1992. 



For Petitioner: 



For Respondent: 



APPEARANCES 

WARD and SMITH, Attorneys at Law, Greenville, North Carolina; A. Charles 
Ellis appearing. 

F.J. Di Pasquantonio, Associate Attorney General, North Carolina Department 
of Justice, Raleigh, North Carolina. 

ISSUE 



Whether a bowel evacuation apparatus such as the Avatar Personal Bowel Care System is covered 
ander the North Carolina Teachers' and State Employees' Comprehensive Major Medical Plan. 

From official documents in the file, sworn testimony of the witnesses, and other competent and 
admissible evidence, the undersigned makes the following: 

FINDINGS OF FACT 

Stipulated Facts 

"The Petitioner was involved in an auto accident in June of 1985 and suffered injuries which re- 
sulted in quadriplegia; and since that time has had an atonic colon, which has presented problems 
with him emptying his bowels voluntarily in a normal manner." 

"The Petitioner initially accomplished bowel movements through the use of suppositories and 
laxatives; however, in December of 1987, the Petitioner began requiring digital stimulation to re- 
move stool in addition to the use of suppositories and laxatives, which procedure has continued 
to the present time." 

"The Petitioner, through his physician, Craig Simpson, M.D., requested approval by the [N.C. 
Teachers' and State Employees' Comprehensive Major Medical] Plan (hereinafter 'Plan'] for the 
purchase of the Avatar Personal Bowel Care System by letter dated February 6, 1990 to aid the 
Petitioner in emptying his bowel. The Plan denied the request by letter dated March 14, 1990 to 
Dr. Simpson, based on the information provided and in accordance with the Plan's guidelines. 
Dr. Simpson followed up by letter dated March 20, 1990 requesting the Plan to reconsider its po- 
sition. The purchase price for the system for an agreement length of one year as of May, 1990 
was $4770 plus applicable state and local taxes. Once the initial contract had been completed, 
renewal contracts for supplies ranged from $1608 for one year to $6480 for five years. The Plan 
by letter dated June 18, 1990 confirmed its position of denial on the basis that the system was 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



SS3 



CONTESTED CASE DECISIONS 



non-covered durable medical equipment, and informed the Petitioner of his right to appeal the 

decision." 

4. "Paul V. Bondy, M.D., who assumed responsibility for medical treatment of the Petitioner from 
Dr. Simpson, appealed the decision of the Plan on behalf of the Petitioner by letter dated July 24, 
1990. The Plan, by letter dated August 14, 1990 responded by indicating that it continued to 
maintain its position of denial based on the fact that the system was a non-covered durable medical 
equipment item, and informed Dr. Bondy that a second level review could be requested." 

5. "The Petitioner, by letter dated September 4, 1990 requested a second level review. The Plan, by 
letter dated October 24, 1990, determined that there was no evidence to support the medical ne- 
cessity of the Avatar Personal Bowel Care system to warrant approval, and that it would therefore 
have to continue its position of denial. The Petitioner was informed that a final review pursuant 
to General Statute 135-39.7 providing for review by the Executive Administrator and the Board 
of Trustees of the Plan was available to him." 

6. "The Petitioner, by letter dated February 5, 1991, requested a final level review. The Petitioner's 
physician, Dr. Bondy, submitted information by letter dated March 12, 1991 in support of the 
Petitioner's request for approval for the system." 

7. "The Plan, by letter dated May 15, 1991, informed the Petitioner that his appeal was presented to 
the Board of Trustees and the Executive Administrator of the Plan on April 24, 1991; and that 
based on the issues and facts available, the decision was to deny the appeal. The denial was based 
on G.S. 135-40. 6(8)e, in that the equipment was primarily for the convenience of the patient or 
his family." 

8. "The Petitioner filed a 'Petition for a Contested Case Hearing' with the Office of Administrative 
Hearings by letter dated July 8, 1991." 

9. "A Hearing was scheduled for November 21, 1991 in Pitt County; however, the Hearing was con- 
tinued upon motion of the Petitioner and agreement of the parties." 

10. "A deposition of Paul V. Bondy, M.D. was scheduled for the offices of the Petitioner's counsel 
on February 6, 1992; however, the date was changed upon request of the Respondent and agree- 
ment of counsel for the Petitioner to March 16, 1992, the next available date mutually convenient 
for Dr. Bondy and counsel for the Petitioner." 

1 1 . "The deposition was taken of Dr. Bondy in the law offices of counsel for the Petitioner on March 
16, 1992, with such deposition being taken in lieu of direct testimony by Dr. Bondy in the Ad- 
ministrative Hearing." 

Adjudicated Facts 

12. At the time that the Petitioner suffered his spinal cord injury, the nerves leading to his intestines, 
specifically those nerves under voluntary control, were rendered unusable to him. He has no 
voluntary control of his intestinal function. His body is limited indicating to him that he has a full 
colon and will need to evacuate. He cannot voluntarily empty his colon because his voluntary 
nerves were injured. 

13. Since April or May of 1987, approximately every third day the Petitioner undergoes digital disim- 
paction in order to evacuate his bowels. His wife, Cheryl Page Purser performs the digital disim- 
paction for the Petitioner. This process can take anywhere from forty-five minutes to two hours. 

14. In order to have his bowels digitally disimpacted, the Petitioner lies in bed on a pad. A suppository 
is inserted in his rectum approximately thirty minutes prior to the disimpaction process. Mrs. 
Purser puts on plastic gloves and inserts her fingers into the Petitioner's rectum and digs out the 
stool until she has gotten all that is within reach of her fingers or until the Petitioner starts to bleed. 



884 7:8 NORTH CAROLINA REGISTER July 15, 1992 



CONTESTED CASE DECISIONS 



During the digital disimpaction, the Petitioner sweats profusely, experiences abdominal pain, and 
sometimes bleeds from the rectum. 

After digital disimpaction, the Petitioner usually has a bowel accident during the night while he is 
asleep. Occasionally, he will also experience some bowel leakage the following day. 

The Petitioner's stools are, for the most part, hard stools. Despite the use of stool softeners and 
bulk, bran, and fiber products, the Petitioner continues to have very hard stools, and as a result, 
he is at risk for developing a complete bowel obstruction. 

The bleeding that the Petitioner sometimes experiences during digital disimpaction is evidence that 
the tissue of his rectum and colon have been broken and separated and this provides an access for 
bacterial from the feces to penetrate into that tissue and could cause it to become quite infected. 

[9. It is not acceptable medical practice to do nothing to try to alleviate or stop the Petitioner's 
bleeding, abdominal pain, and bowel accidents. 

0. The frequent insertion of the fingers into the rectal opening can cause loss of sphincter tone. 
Decreased sphincter tone could lead to overflow of stool, thereby causing bowel accidents. The 
Petitioner is limited in his capacity to clean himself up. If the Petitioner were to be sitting in stool, 
it would be caustic to the tissues of his legs and buttocks and would eventually cause breakdown 
of those tissues and infection. 

1. The failure to remove all stool during digital disimpaction can lead to a bowel obstruction which 
may ultimately require surgery to remove the stool and most likely then require diversion 
colostomy. 

2. The Avatar Personal Bowel Care System (hereinafter "Avatar System") uses a smooth nozzle or 
speculum which is inserted into the rectum. The nozzle attempts to mechanically interrupt and 
soften the feces which are in the vault and in the lower colon with intermittent low-pressure 
pulsation of body temperature water and cause the feces and water to flow out of the colon into 
a sealed waste container that is part of the nozzle. The Avatar System, unlike the finger, is spe- 
cifically designed for removing feces from the colon. It is designed as a small, smooth device which 
is very amenable to lubrication and placement into the rectum. It does not require repeated in- 
troduction, removal, and re-introduction since it allows for outflow of the feces with it in place. 
It is less likely to abrade and traumatize the tissue than the use of the finger for disimpaction. The 
low pressure pulsations of water are more likely to reach higher than the finger can physically reach 
and more likely to interrupt the feces and disperse them in the water, allowing them to flow out 
with less trauma. Digital disimpaction requires removal of bulk stool, and if it is hard stool, like 
the Petitioner's, it may be large bulk along with the finger which is more likely to cause trauma. 

3. The Avatar System is less likely to stretch the sphincter and cause decrease in sphincter tone. 

4. Dr. Bondy is of the opinion that Avatar System will eliminate the abdominal pain and other 
symptoms the Petitioner currently experiences with digital disimpaction. Dr. Bondy is also of the 
opinion that the Avatar System is more likely to reduce the need for future medical treatment for 
the Petitioner than continued digital disimpaction. 

5. Although the Petitioner may initially require an assistant to place the Avatar apparatus, he may 
ultimately be able to learn how to do this himself. 

6. The Avatar System should decrease the amount of time it takes to evacuate the Petitioner's bowel. 

7. The Avatar System is medically necessary to assist the Petitioner in evacuating his bowels and to 
avoid the complications associated with digital disimpaction and bowel obstruction. 

8. The Avatar System replaces a physiological function: bowel evacuation. 



7:8 NORTH CAROLINA REGISTER July 15, 1992 SS5 



CONTESTED CASE DECISIONS 



29. The Avatar System is required for the medically necessary treatment of the Petitioner's atonic co- 
lon. 

30. The Avatar System is not being prescribed for the personal convenience of the Petitioner or his 
wife. 

3 1 . The Avatar System is generally not useful to a person in the absence of an injury such as that ex- 
perienced by the Petitioner and it is appropriate for use in the home by the Petitioner. 

32. Hospitals and outpatient clinics use the Avatar procedure to address episodes of impactions caused 
by head trauma, Stroke, or spinal cord injury. 

33. The Avatar System can withstand repeated use. 

34. The Petitioner's current condition is medically unacceptable in light of the existence of a medically 
acceptable alternative such as the Avatar System. 

35. Durable Medical equipment is defined at section 135-40. 6(8)e as an item that is provided solely for 
the use of the participant and is standard equipment normally used in an institutional setting which 
can withstand repeated use, is primarily and customarily used to serve a medical purpose, is gen- 
erally not useful to a person in the absence of an illness or injury and is appropriate for use in the 
home. 

36. The Avatar System is an item of durable medical equipment. 

Based on the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the 
following: 

CONCLUSIONS OF LAW 

1 . The Petitioner is the covered dependent of State I Iealth Plan member Cheryl Page Purser. 

2. The Petitioner is entitled to the benefits provided for in Article 3 of Chapter 135 of the North 
Carolina General Statutes. 

3. Durable medical equipment is eligible for coverage pursuant to the provisions of North Carolina 
General Statutes section 135-40. 6(8)e. 

4. The Petitioner has carried his burden of proof by the preponderance of evidence and by its greater 
weight that the Avatar Bowel Care System meets all of the definitional requirements of durable 
medical equipment. 

5. As a piece of durable medical equipment, the Avatar Personal Bowel Care System for the use of 
the dependent insured falls within the statutory prior approval requirement of section 
135-40. 6A(a)(5) of the North Carolina General Statutes before it is deemed a covered benefit. 

6. Digital disimpaction is no longer a medically acceptable method of bowel evacuation for the 
Petitioner because of the attendant complications of such procedure. Therefore, alternative 
methods of disimpaction are medically indicated. In the opinion of the Petitioner's treating phy- 
sicians, the Avatar System is the next alternative short of surgical intervention. 

7. The Avatar System is medically necessary for the Petitioner because it replaces a necessary bi- 
ological function and because other alternative methods of effecting bowel evacuation have proven 
to be either unsuccessful or medically unacceptable because of attendant complications. 

8. Since the Avatar is both medically necessary and an item of durable medical equipment, there is 
no reason that it should not receive the approval required pursuant to section 1 35-40. 6A(a)(5). 



8S6 7:8 NORTH CAROLINA REGISTER July 15, 1992 



CONTESTED CASE DECISIONS 



Since the Avatar System is medically necessary and is an item of durable medical equipment as 
defined by statute, the Petitioner is eligible to have the expense of this purchase paid for as a 
medical benefit. 

RECOMMENDED DECISION 

The Board of Trustees and the Executive Administrator of the North Carolina Teachers' and State 
Employees' Comprehensive Major Medical Plan will make the Final Decision in this contested case. 
t is recommended that the agency adopt the Findings of Fact and Conclusions of Law set forth above 
nd grant the Petitioner the prior approval required by section 1 35-40. 6A(a)(5) of the North Carolina 
General Statutes for the purchase of an Avatar Personal Bowel Care System. 

NOTICE 

Before the agency makes the FINAL DECISION, it is required by North Carolina General Statutes 
ection 150B-36(a) to give each party an opportunity to file exceptions to this RECOMMENDED DE- 
CISION, and to present written arguments to those in the agency who will make the final decision. 

The agency is required by North Carolina General Statutes section 150B-36(b) to serve a copy of 
he Final Decision on all parties and to furnish a copy to the Parties' attorney of record and to the 
)ffice of Administrative Hearings. 



This the 12th day of June, 1992. 



Brenda B. Becton 
Administrative Law Judge 



7:8 NORTH CAROLINA REGISTER July 15, 1992 887 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF PITT 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

91 EDC0897 



ALMETTA TYSON, 
Petitioner 



PITT COUNTY BOARD OF 
EDUCATION, 

Respondent 




Thus matter was heard before Fred Gilbert Morrison Jr., Senior Administrative Law Judge, on 
March 23 and May 11. 1992, in Greenville, North Carolina. At the conclusion of the hearing the 
parties were given thirty days to submit proposed decisions for consideration and any additional written 
arguments. The parties filed their proposals within this time period, and the parties had previously 
waived the time limitation for holding a hearing and rendering a decision. The Administrative Law- 
Judge has considered the parties' proposals and their written arguments and has considered all matters 
presented at the hearing. 

APPEARANCES 



FOR THE PETITIONER: 



Jack Hansel 

Pamlico Sound Legal Services 
P. O. Box 7283 
Greenville, NC 27835-7283 



FOR THE RESPONDENT: 



Phillip R. Dixon 
Dixon, Doub & Conner 
P.O. Drawer 8668 
Greenville. NC 27S35-8668 



ISSUES 

1 . Whether the Respondent has failed to provide Marcus Tyson with an appropriate individualized 
education program pursuant to State and federal law. 

2. \\ nether the Respondent has denied Marcus Tyson his right to a free appropriate education by 
failing to educate him in the least restrictive appropriate setting. 

FINDINGS OF FACT 

1. Marcus Tyson is a fifth grade student who is eleven years of age and at the time of hearing of this 
case was identified by the Respondent as a Behaviorally and Emotionally Handicapped child and 
was placed in a self-contained class at W. H. Robinson Elementary School in Winterville, Pitt 
County, North Carolina. He resides with his mother, Almetta Tyson. 

2. He was placed in this manner pursuant to an individualized education program completed on 
August 22, 1991. 

3. Respondent Pitt County Board of Education is a local education agency receiving monies pursuant 
to the Individuals with Disabilities Education Act. 20 U.S.C. Section 1400 et seq., and operated 
the school svstem which Marcus Tvson attends. 



888 



:8 NORTH CAROLINA REGISTER July 15, 1992 



CONTESTED CASE DECISIONS 



4. Marcus was first enrolled in the Pitt County Schools in 1986 for kindergarten at Elmhurst Ele- 
mentary School, and the following school year was enrolled in Eastern Elementary in Pitt County 
for the first grade and the beginning of the second grade. 

5. An Exceptional Children Referral Form was completed on May 12, 1988, and Petitioner agreed 
to psychological testing for Marcus at that time, which testing was performed by Gail L. Mcintosh, 
MA, School Psychologist II in May, 1988. 

6. Ms. Mcintosh found in her report that "Marcus exhibited deficits on visual - motor - perceptual 
tasks that required recognition of part - to - whole relationships, figure integration, perceptual or- 
ganization, and motor planning", however, she found no indication of a specific learning problem 
and concluded that Marcus exhibited maladaptive and inappropriate behaviors so as to "warrant 
consideration for identification as Behaviorally / Emotionally Handicapped." 

7. Ms. Mcintosh recommended in her report of that evaluation that Marcus "receive special education 

services on a consultative and / or resource basis and that he continue to remain in the regular 
education setting for as much time as possible." 

8. Ms. Mcintosh stated in the report that Marcus "should be closely monitored while working on 
visual - motor - perceptual activities so that these activities can be modified or discontinued before 
Marcus becomes frustrated" and she also recommended that "home and school work together in 
a cooperative, consistent manner for Marcus to make maximum progress." 

9. Marcus was determined to be appropriate for placement in the Exceptional Children Program but 
before services were provided pursuant to such a placement, Petitioner enrolled Marcus in private 
school at St. Gabriel's Catholic Church School for the last month or so of the second grade, and 
he remained there through the third grade. Marcus was not placed in a special education place- 
ment while attending St. Gabriel's. 

10. Marcus re-enrolled in the Pitt County Schools at the beginning of his fourth grade in the 1990-1991 
school year, and he was placed in a regular classroom at W. H. Robinson Elementary school. 

. A new individualized education program was devised for Marcus for the period November, 1990 
to November, 1991, which identified Marcus as Behaviorally / Emotionally Handicapped, and re- 
commended that he receive fourteen percent of his education in exceptional education and related 
services with the remainder of his time in the regular classroom. The exceptional education ser- 
vices provided were in the form of a Learning Disabled resource room math class. 

12. Petitioner requested a re-evaluation of Marcus and a psychological evaluation was performed by 
Jenny Thigpen, School Psychologist II on March 28, 1991. 

13. Ms. Thigpen recommended in the summary of her evaluation that Marcus continue to be identified 
as BEH, but she also noted that he "does appear to have some difficulty with abstract visual per- 
ceptual reasoning and visual - motor integration" and she stated that "(t|o what extent this re- 
presents a specific weakness or a behavioral component is difficult for the examiner to ascertain." 

14. Ms. Thigpen stated in her report that due to Marcus' behavioral problems placement in "a more 
restrictive setting such as a self-contained BEH classroom or in a BEH classroom for several pe- 
riods a day" might be considered and she also recommended that "[blecause of his possible visual 
- motor - perceptual weaknesses, written assignments may be particularly difficult for Marcus" and 
that he "should be closely monitored while working on these tasks so that they can be modified 
or discontinued when he becomes overly frustrated." She recommended that "|\vjritten tasks 
should be broken down into components and checked as these are completed" which she felt 
would "help reduce frustration as well as allow a highly structured on-task behavior." 

A conference was held on August 22, 1991, at which it was recommended by the school-based 
committee that Marcus be placed in a separate BEH classroom. 



7:8 NORTH CAROLINA REGISTER July 15, 1992 SS9 



CONTESTED CASE DECISIONS 



16. Petitioner did not and does not approve of the change in placement for Marcus proposed by the 
education program of August 22, 1991, and therefore filed her petition herein and has pursued this 
matter as a contested case. 

17. After the filing of the petition herein, the parties stipulated that an independent psychological and 
educational evaluation should be performed upon Marcus by Dr. Raymond E. Webster, Ph.D., 
NCSP, and such an evaluation was performed on December 11, 1991. 

18. Dr. Webster found in the summary of his evaluation that Marcus suffers from two special needs 
in that he is both behaviorally and emotionally handicapped as well as having a specific learning 
disability. He found that the tests administered indicated that Marcus had a "significant visual - 
perceptual - motor dysfunction which would interfere with school progress and achievement", and 
more specifically he found that Marcus "has a visual short-term memory capacity deficit" as well 
as "great difficulty in storing and retrieving information from long-term memory when presented 
verbally to him." 

19. Dr. Webster also found "Marcus is experiencing levels of anxiety and internal discomfort which 
are well beyond those to be expected at this state of psychosocial development". 

20. Dr. Webster stated that Marcus' overall diagnostic picture was one of Dysthymic disorder and 
Mixed specific developmental disorder and he (Webster) testified that Marcus' behavioral and 
emotional disability and his learning disability were co-equal in the significance of their impact 
upon his educational needs. 

21. The findings of Dr. Webster as noted in the preceding paragraphs are credible and persuasive. 

22. Dr. Webster's finding of a significant visual - perceptual - motor dysfunction is consistent with the 
findings of the school psychologists noted above regarding possible visual - motor - perceptual 
weaknesses and deficits on visual - motor - perceptual tasks and his finding in this regard is credible 
and persuasive. 

23. During the pendency of this contested case proceeding, through compromise by the parties, 
Marcus' placement has been changed so that he receives thirty-five percent of his education in a 
BEH self-contained class and sixty-five percent in an LD placement. 

24. The testimony and evidence of the Petitioner and the testimony of Dr. Webster clearly demonstrate 
that the Petitioner is opposed to and hostile to the proposal of any placement involving a BEH 
classroom setting and Marcus Tyson is also opposed to being educated in a BEH separate class- 
room. 

25. Marcus continues to exhibit behavioral problems in the BEH classroom but has not demonstrated 
any such serious problems in the LD classroom placement for sixty-five percent of his school day. 

26. Marcus suffers from a behavioral and emotional handicapping condition as well as from a specific 
learning disability, both of which must be taken into consideration in determining the appropriate 
educational placement and program for Marcus. 

27. Dr. Webster found and the evidence supports his finding that Marcus may be able to be successful 
in the regular classroom for part of his school day with supportive services from the BEH and LD 
teachers to the regular classroom teacher. 

28. Dr. Webster suggested various management strategies for teachers to use with Marcus, all of which 
are appropriate for his education needs, including "LD consultation services to regular education 
staff in addition to resource room participation and regular daily check-in meetings with the school 
counselor in the morning and afternoon to serve as a support base" and Petitioner is in agreement 
with the findings and recommendations of Dr. Webster. 



890 7:8 NORTH CAROLINA REGISTER July 15, 1992 



CONTESTED CASE DECISIONS 



19. Although the parties disagree substantially as to the nature of Marcus Tyson's handicapping con- 
dition or conditions, they are in agreement and there is no dispute that he is a child with special 
needs and is a child with a disability for purposes of the Individuals with Disabilities Act and 
N.C.G.S. 115C-106 et seq. 

CONCLUSIONS OF LAW 

1. Marcus Tyson is a child with a disability for purposes of the Individuals with Disabilities Education 
Act, 20 U.S.C.A. Section 1400 et secf. 

2. Marcus Tyson is a child with special needs for purposes of N.C.G.S. Section 115C-109. 

3. Respondent is obligated to provide a free, appropriate public education in the least restrictive en- 
vironment to Marcus Tyson under IDEA and N.C.G.S. Section 1 15C-106 et seq. 

4. The individual education program proposed by Respondent for Marcus Tyson for the period of 
August, 1991 to August, 1992, failed to propose a free appropriate public education for Marcus 
Tyson in the least restrictive environment, and the individual education program actually provided 
by Respondent during this period of time and to the present has failed to provide Marcus a free 
appropriate public education in the least restrictive environment. 

5. In developing an individual education program for Marcus Tyson, the Respondent has failed to 
properly consider the extreme objection and hostility of Petitioner and Marcus himself to any 
placement involving a separate BEH classroom for him, which hostility under the circumstances 
of this case militates strongly against including the BEH separate classroom as part of the indi- 
vidual education program for Marcus Tyson. 

6. In developing an individual education program for Marcus Tyson, the Respondent has failed to 
give proper consideration to the specific learning disability which Marcus has and his education 
needs resulting from that disability. 

7. The Respondent has failed to provide Marcus Tyson the opportunity to be educated, to the max- 
imum extent possible, with children who are not exceptional. 

8. The recommendations of Dr. Webster contained in his psychological evaluation of December 1 1 , 
1991, and his letter of February 17, 1992, are reasonably calculated to provide Marcus Tyson with 
a free and appropriate education in the least restrictive environment. 

9. The thirty-five percent of his educational day which Marcus Tyson has recently spent in a separate 
BEH classroom is an appropriate amount of time for him to receive education in a regular class- 
room with appropriate supportive services for his handicapping conditions. 

IT IS THEREFORE DECIDED that in order to provide Marcus Tyson the free appropriate ed- 
lcation in the least restrictive environment to which he is entitled, these following recommendations 
nerit implementation: 

1. Immediately modify Marcus Tyson's individual education program by removing any provision al- 
lowing for any part of Marcus' education to take place in a BEH separate classroom or BEH re- 
source room. 

2. Immediately incorporate into Marcus Tyson's individual education program the provision that 
Marcus spend thirty-five percent of his school day in the regular classroom with appropriate LD 
and BEH consultation services to the regular education staff and that Marcus receive the remainder 
of his education in an LD classroom or resource room with the provision of consultative services 
of a BEH teacher to the LD teacher. 



7:8 NORTH CAROLINA REGISTER July 15, 1992 891 



CONTESTED CASE DECISIONS 



3. Immediately incorporate into Marcus Tyson's individual education program regular daily check-ins 
of Marcus with an appropriate school counselor, psychologist or social worker, in the mornings 
and afternoons of school days to serve as a support base for Marcus. 

4. Immediately incorporate into Marcus Tyson's individual education program the requirement that 
the management strategies and other recommendations for meeting Marcus' education needs con- 
tained in Dr. Raymond E. Webster's psychological evaluation of December 11, 1991, be taken into 
consideration by teachers and other staff in developing educational strategies for Marcus. 

5. Development of a systematic behavior modification program with rewards or special privileges for 
appropriate behavior and loss of pnvileges for inappropriate behavior. 

6. Immediate access to a specified school staff member with whom the student has rapport to discuss 
and try to resolve any problem arising. 

7. Preventive measures to avoid troublesome activities. 

NOTICE 

This decision becomes fmal and not subject to final review unless appealed. Any party aggrie\ed 
by this decision may appeal it within thirty (30) days after receipt of this notice by filing a written notice 
of appeal with the Superintendent of Public Instruction. G.S. 115C-1 16(h) & (i). 

This the 19th day of June, 1992. 



Fred G. Morrison, Jr. 

Senior Administrative Law Jud°e 



S92 7:8 NORTH CAROLINA REGISTER July 15, 1992 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 
COUNTY OF BLRKE 



BIO-MEDICAL APPLICATIONS OF NORTH ) 

CAROLINA, 1NC.,D/B/A BMA OF LENOIR, ) 

Petitioner, ) 



) 

) 91 DHR 1086 



) 

CERTIFICATE OF NEED SECTION, DIVISION ) 

OF FACILITY SERVICES, NORTH CAROLINA ) 

DEPARTMENT OF HUMAN RESOURCES, ) 

Respondent, ) 

) 
and ) 

) 

CHARLOTTE ARTIFICIAL KIDNEY CLINIC, ) 

INC and DELTA MEDICAL PROPERTIES, ) 

Respondent-Intervenors. ) 



CHARLOTTE ARTIFICIAL KIDNEY CLINIC, ) 

INC. and DELTA MEDICAL PROPERTIES, ) 

Petitioners, ) 



) 

CERTIFICATE OF NEED SECTION, DIVISION ) 

OF FACILITY SERVICES, NORTH CAROLINA ) 

DEPARTMENT OF HUMAN RESOURCES, ) 

Respondent, ) 

) 
and ) 

) 

BIO-MEDICAL APPLICATIONS OF NORTH ) 

CAROLINA, INC., d/b/a BMA LENOIR, ) 

Respondent-lntervenor. ) 



) 

) 91 DHR 1089 



RECOMMENDED DECISION 
BASED ON STIPULATED FACTS 

These consolidated contested cases came on for hearing before the undersigned based upon stipu- 
ated facts submitted by the parties, BIO-MEDICAL APPLICATIONS OF NORTH CAROLINA, 
NC, D/B/A BMA LENOIR (hereinafter "BMA"), CHARLOTTE ARTIFICIAL KIDNEY 
:LINIC, INC. (hereinafter "CAKC"), DELTA MEDICAL PROPERTIES ("DELTA"), and the 
ZERTIFICATE OF NEED SECTION, DIVISION OF FACILITY SERVICE, NOR III 
:AROLINA DEPARTMENT OF HUMAN RESOURCES (hereinafter "CON Section" or the 
Agency"), all of the parties to the captioned contested cases. Those Stipulations have previously been 
Ued with this office. 

ISSUES 

1. Whether the conditional approval of the applications by BMA and CAKC and DELTA 
onform to all applicable plans, standards, and criteria. 

2. Whether the approval of the BMA application as a 12-station facility, best meets the dialysis 
leeds of residents of Burke County. 

OFFICIAL NOTICE 



7:8 NORTH CAROLINA REGISTER July 15, 1992 cS93 



CONTESTED CASE DECISIONS 



Per parties' request, official notice is taken of the 1991 State Medical Facilities Plan and the 1992 
State Medical Facilities Plan. 

JURISDICTION 

1 . All parties are properly before the Office of Administrative Hearings, and that the Office of 
Administrative Hearings has jurisdiction over the parties and over the subject matter of this contested 
case hearing. 

2. All parties have been correctly designated, and that there are no issues as to nonjoinder or 
misjoinder of parties. The parlies are not aware of any other person seeking to intervene. 

FACTS 

3. The human kidney functions essentially as a filter removing the waste by-products of metabolic 
processes, as well as excess concentrations of various minerals and other molecules. 

4. Like any organ, the kidney can be affected by infections, trauma, or chronic diseases such as 
diabetes and hypertension, any of which can result in a progressive deterioration of the kidneys' func- 
tion. 

5. End Stage Renal Disease (ESRD) is a condition of the human kidney in which progressive 
failure of the kidney to perform its function has reached the stage at which both kidneys are essentially 
dysfunctional. 

6. When a patient reaches ESRD, some interventional treatment is needed in order to replace the 
function of the dysfunctional kidneys and keep the patient alive. 

7. One method of replacing the kidneys' function is transplantation, in which a donor's kidney 
is transplanted into the patient, but the availability of donor kidneys, the possibility of rejection of the 
transplant, and the inability of some patients to undergo the surgery all limit the efficacy of transplan- 
tation. 

8. For most ESRD patients, treatment will take the form of various kinds of dialysis in which 
artificially prepared fluids are used to induce a redistribution of excess concentrations of water, chemi- 
cals, and minerals out of the blood stream. 

9. In the case of peritoneal dialysis, this process occurs through the introduction of a dialysis 
solution into the peritoneal cavity, where there is an abundant concentration of blood vessels. Through 
osmosis, the lower concentration of water, chemicals and minerals in the dialysate solution induces the 
migration of these materials across the membranes out of the blood vessels and into the dialysate sol- 
ution. The dialysate solution is then drained off after a sufficient period of time has elapsed to allow 
for the process to be complete. 

10. In the case of hemodialysis, the patient's blood is routed through a catheter introduced in a 
vein through a dialysis machine where the blood is passed over membranes through which the same 
osmotic process occurs to transfer the water, chemicals, and minerals out of the blood stream and into 
a dialysate solution on the other side of the membrane. 

1 1. Dialysis treatments are reimbursed to dialysis facilities under the Medicare program. 

12. In North Carolina, new dialysis facilities are subject to the Certificate of Need Law, but do 
not obtain a license from the Department of Human Resources. However, in order to participate in 
Medicare reimbursement, any dialysis facility must be certified by the Health Care Financing Admin- 
istration and meet certain basic requirements. 

13. The 1991 State Medical Facilities Plan did not contain a methodology for projecting the need 
for additional dialysis stations. Instead, the 1991 SMFP contained a methodology that permitted the 



894 7:8 NORTH CAROLINA REGISTER July 15, 1992 



CONTESTED CASE DECISIONS 



addition of stations only in existing end-stage renal disease facilities which document that they are 
Dvercrowded. See "The ESRD Projection of Need Method," page 98 of the 1991 State Medical Fa- 
ilities Plan. 

14. The 1991 SMFP did not include a policy or methodology regarding the addition of stations 
to proposed new facilities. 

15. On May 16, 1991, BMA applied for a certificate of need to transfer 8 stations from its existing 
iialysis facility in Lenoir, North Carolina to establish a new dialysis facility in Morganton, North 
Carolina, Project I.D. No. E-4308-91 (hereinafter "BMA Application"). 

16. The BMA Application and the CAKC and DELTA Application were deemed complete for 
•eview and accepted for a June 1, 1991, batch of applications for dialysis facilities; these applications 
A - ere initially deemed to be competitive applications by CON. 

17. On August 9, 1991 a public hearing was held in Morganton, North Carolina. 

18. On September 27, 1991, the CON Section approved, with conditions, the BMA Application 
or a certificate of need to establish a new 8-station kidney dialysis facility in Morganton. North 
Carolina, by relocating 8 kidney dialysis stations from an existing facility in Lenoir, North Carolina. 

19. On 27 September 1991, the CON Section simultaneously approved, with conditions, CAKC 
ind DELTA'S Application for a certificate of need to establish a new 6-station kidney dialysis facility 
n Morganton, North Carolina, by relocating 6 kidney dialysis stations from an existing facility in 
vlatthews, North Carolina. 

20. BMA and CAKC and DELTA filed separate petitions for a contested case hearing in the 
Dffice of Administrative Hearings on 28 October 1991, in which CAKC and DLLTA appealed the 
'ON Section's approval of the BMA Application, and BMA appealed the CON Section's approval 
f the CAKC and DELTA Application. 

21. The BMA Application and the CAKC and DELTA Application each proposed to serve res- 
dents of Burke, McDowell and Rutherford Counties. The CAKC and DELTA Application also 

roposed to serve residents of Lincoln County. 

22. The 1991 State Medical Facilities Plan in effect at the time these applications were reviewed 
lid not contain a methodology for projecting the need for additional dialysis stations in these counties 
Dr elsewhere. 

23. The BMA Application and the CAKC and DELTA Application each projected a need for 
10 more than 12 ESRD stations in their respective proposed service areas by the end of 1994. 

24. The CON Section's decisions conditionally approving both the BMA Application and the 
AKC and DELTA Application were based on Agency findings that there would be a need for 16 

iSRD stations in the service area (consisting of Burke, McDowell, Rutherford and Lincoln Counties) 
y the end of 1994; thus, the Agency concluded there was a need for the total of 14 ESRD stations 
roposed by BMA and CAKC and DELTA combined, that both applications conformed with all ap- 
plicable review criteria, including those pertaining to need, as conditioned, and both applications could 
De, and were, approved. 

25. Before the CON Section's decisions on these two applications, the final draft of the 1992 State 
Medical Facilities Plan was published, including a chapter on End Stage Renal Disease (ESRD) which 

rojected the need for dialysis stations across North Carolina. 

26. The draft plan which was ultimately adopted by the Governor showed a total 1992 dialysis 
tation need for Burke County of 12.70 stations. Following the standard CON Section practice, this 
teed is rounded down to 12 stations. 



7:8 NORTH CAROLINA REGISTER July 15, 1992 895 



CONTESTED CASE DECISIONS 



28. The 1992 SMFP in its draft form showed a need for 12.7 ESRD stations to serve Burke 
County, 3.38 stations to serve McDowell County, 6.74 stations to serve the residents of Rutherford 
County, and 7.26 stations to serve the needs of Lincoln County. 

29. The 1992 SMFP in its final form identifies ESRD planning areas for which stations are allo- 
cated as follows: 

Planning County Allocation 

Area# 

9 Lincoln 7 Stations 

6 Rutherford 7 Stations 

5 Burke, McDowell 2 Stations 

The allocation for stations to serve Burke and McDowell Counties was adjusted to reflect the 
award of the 14 stations to the two applicants in this contested case. The allocation would have been 
16 stations if the two applications which are the subject of this contested case had not been approved. 
Applications have been received in 1992 to address the need in Rutherford and Lincoln Counties. 

30. It is the policy of the CON Section to make ESRD services available in such a manner to 
ensure that no patient must drive more than 30 miles to obtain ESRD services, as travelling for dialysis 
services creates a significant hardship on ESRD patients and their families. 

31. According to statistics provided by the Southeastern Kidney Council, at least 27 Burke 
County residents travelled to other counties in 1991 to obtain ESRD treatment. 

32. BMA's application and supporting materials showed that at least 25 patients in its Lenoir fa- 
cility were Burke County residents who expressed a desire to transfer to its proposed Morganton facil- 
ity. 

33. llie BMA Application is conforming, as conditioned, with all applicable review criteria. 

34. CAKC and DELTA, separate and apart from the other parties, stipulate and agree that their 
application should be found nonconforming with certain applicable review criteria based upon the is- 
suance of a certificate of need for a 12-station dialysis facility to BMA. 

Based upon the foregoing stipulated facts, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1. Based upon the 1991 and 1992 State Medical Facilities Plan ("SMFP"), and the CON 
Section's analysis during the review of the need in Burke County for FSRD stations, there is a need for 
twelve ESRD stations to meet the needs of Burke County residents. 

2. In view of the discrete need identified for Rutherford and Lincoln Counties in the 1992 SMFP, 
and the pending applications to address that need, it is neither necessary nor prudent to consider these 
counties in the service area for any Morganton dialysis facility. 

3. Since both the BMA application and the CAKC/DELTA application did not propose to serve 
significant portions of McDowell County, it is most reasonable to base the determination of need for 
the station complement of a dialysis facility in Morganton exclusively upon the twelve stations needed 
for Burke County. 

4. The Agency will not exceed the need established for Burke County if it awards a Certificate 
of Need for twelve stations to BMA for a Morganton facility, by transfer of eight stations from its 
Lenoir facility, and the addition of four stations. 



896 7:8 NORTH CAROLINA REGISTER July 15, 1992 



CONTESTED CASE DECISIONS 



5. Neither the Certificate of Need statute, G.S. § 131E-I75, et secj., the Administrative Procedure 
Act, G.S. Chapter 150B, nor the applicable regulations, prohibit the Agency from awarding BMA a 
twelve station ESRD facility under the facts as set out hereinabove. 

6. After due consideration of the Certificate of Need statute, the regulations promulgated there- 
under, the 1991 and 1992 State Medical Facilities Plans, the stipulated facts, affidavits of record, and 
other applicable information, the undersigned concludes that the development of one twelve station 
ESRD facility in Morganton, North Carolina, by BMA, would meet all applicable plans, standards and 
criteria of the Agency, and would meet the need of end stage renal disease patients in Burke County. 

DISCUSSION 

In addition to the stipulated facts, the Agency offered the Affidavit of Lee B. Hoffman, Chief of 
the Certificate of Need Section. Ms. Hoffman's Affidavit expressed the opinion that even though the 
Agency has identified the need for at least 14 ESRD stations in Burke County, the Agency cannot ap- 
prove a 12-station facility for three reasons, which, as addressed below, are unpersuasive as a matter 
of law. The Agency can approve a 12-station facility for BMA, and the Administrative Law Judge can 
recommend that the Agency do so. 

First, Ms. Hoffman opines that the Agency cannot approve a 12-station facility for BMA because 
the 1991 SMFP did not "permit" the approval of additional stations for a proposed new facility. 
However, the 1991 SMFP contains no methodology for projecting the need for additional dialysis 
stations. See Finding of Fact No. 13. Therefore, the 1991 SMFP neither permits nor prohibits ap- 
plicants from applying for additional stations. 

In any case, the Agency cannot rely solely upon the SMFP to determine whether there is a need 
for health cure services. The Courts have required the Agency to also look to other evidence estab- 
lishing actual need. Lenoir Memorial Hospital. Inc. y^ North Carolina Department of Human Re- 
sources, 98 N.C. App. 178, 390 S.E.2d 448 (1990). "We hold that the Certificate of Need decision is 
not bound solely by the bed-need formula in the .... SMFP and that other criteria should be con- 
sidered and weighed when the Agency is making its decision . . . . " 390 S.E.2d at 452-53. 

Indeed, the Agency has already done so in this case. The Agency's own project analyst undertook 
an independent need analysis and concluded that there was a need in 1991 for at least 14 stations in the 
service area. The stipulated facts indicate that there currently is a need for 12 stations in Burke County 
alone, and that the need in the other counties encompassing the service area is being addressed in other 
applications. All of the undisputed evidence shows that an award of one 12-station facility will best 
meet the needs of Burke County F1SRD patients. 

Second, Ms. Hoffman opines that the Agency cannot approve a 12 station facility for BMA be- 
cause the original BMA application only requested 8 stations. Once a contested case hearing has been 
filed, the Agency has the authority to look at all of the evidence available to it to determine what best 
meets the health care needs of the patients in the service area, even when that evidence was not spe- 
cifically included in an application. In re Application of Wake Kidney Clinic, 85 N.C. App. 639, 355 
S.E.2d 788 (1987). "[T|he hearing officer is not limited to that part of the evidence before it that the 
Section actually relied upon in making its decision." 85 N.C.App. at 643. Thus the fact that BMA 
did not initially apply for the 4 additional ESRD stations does not prevent the Agency from awarding 
those additional stations to BMA in this contested case, nor does it prevent the Administrative Law 
Judge from recommending that this be done. 

Third, Ms. Hoffman opines that the Agency cannot approve a 12-station facility for BMA because 
a subsequent site change due to circumstances beyond BMA's control and the expenses associated with 
the extra 4 stations would constitute amendments to BMA's original application. 

BMA has been compelled to obtain a new site due to the fact that its first two proposed sites have 
since been leased. Such a site change does not constitute an amendment to its application as a matter 
of law. The Agency regularly approves the use of new sites under the same or similar circumstances 



7:8 NORTH CAROLINA REGISTER July 15, 1992 S97 



CONTESTED CASE DECISIONS 



and does not consider such a change to be a per se amendment to an application, as demonstrated by 
a long series of declaratory' rulings directly on point. 

Although BMA's original application did not ask for the additional 4 stations and some further 
expenses will be involved, it is clear from the Affidavit of Ms. Linda C. Upchurch that BMA's addi- 
tional capital expenditures will in no event exceed 15% of its original capital expenditures. This sup- 
plemental expense would not require the filing of a new application under the Certificate of Need Law 
and cannot therefore be considered an amendment. N.C.G.S. § 131E-176(16)e. 

RECOMMENDED DECISION 

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the 
fmal decision maker order that a Certificate of Need be issued to BMA for a 12 station end stage renal 
disease facility, based upon the transfer of 8 stations from BMA's Lenoir facility, and the addition of 
4 stations, as being the most reasonable alternative to meet the criteria of the Certificate of Need statute 
and applicable regulations, and the needs of Burke County. 

NOTICE 

The Agency making the fmal decision in this contested case is required to give each party the op- 
portunity to file exceptions to this recommended decision and to present written arguments to those in 
the Agency who will make the final decision. G.S. § 150B-36(a). The Agency that will make the final 
decision in this contested case is the North Carolina Department of Human Resources. 

This the 22nd day of June, 1992. 



Robert R. Reilly 

Administrative Law Judge 



898 7:8 NORTH CAROLINA REGISTER July 15, 1992 



NORTH CAROLINA ADMINISTRA TIVE CODE CLASSIFICA TION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of 
these, titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each 
major department in the North Carolina executive branch of government has been assigned a title 
number. Titles are further broken down into chapters which shall be numerical in order. The other 
two, subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 

TITLE DEPARTMENT 

1 Administration 

2 Agriculture 

3 Auditor 

4 Economic and Community 

Development 

5 Correction 

6 Council of State 

7 Cultural Resources 

8 Elections 

9 Governor 

10 Human Resources 

1 1 Insurance 

12 Justice 

13 Labor 

14A Crime Control and Public Safety 

15A Environment, Health, and Natural 

Resources 

16 Public Education 

17 Revenue 

18 Secretary of State 
19A Transportation 
20 Treasurer 

*21 Occupational Licensing Boards 

22 Administrative Procedures 

23 Community Colleges 

24 Independent Agencies 

25 State Personnel 

26 Administrative Hearings 



LICENSING BOARDS 


CHAPTER 


Architecture 


2 


Auctioneers 


4 


Barber Examiners 


6 


Certified Public Accountant Examiners 


8 


Chiropractic Examiners 


1(1 


General Contractors 


12 


Cosmetic Art Examiners 


14 


Dental Examiners 


16 


Dietetics Nutrition 


17 


Electrical Contractors 


IN 


Electrolysis 


1') 


Foresters 


2() 


Geologists 


21 


I learing .Aid Dealers and Fitters 


22 


Landscape Architects 


26 


Landscape Contractors 


2N 


Martial & Family Therapy 


31 


Medical Examiners 


32 


Midwifery Joint Committee 


33 


Mortuary Science 


34 


Nursing 


36 


Nursing Home Administrators 


37 


Occupational Therapists 


38 


Opticians 


40 


Optometry 


42 


Osteopathic Examination and 


44 


Registration (Repealed) 




Pharmacy 


46 


Physical Therapy Examiners 


4S 


Plumbing, 1 leating and Fire Sprinkler 


50 


Contractors 




Podiatry Examiners 


52 


Practicing Counselors 


53 


Practicing Psychologists 


54 


Professional Engineers and I. and Surveyors 56 


Real Estate Commission 


58 


Refrigeration Examiners 


60 


Sanitarian Examiners 


62 


Social Work 


63 


Speech and Language Pathologists and 


(.4 


Audiologists 




Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



S99 



CUMULA TIVE INDEX 



CUMULA TIVE INDEX 

(April 1992 - March 1993) 



1992 - 1993 



Pages 



Issue 



1 - 105 1 - April 

106 - 173 2 - April 

174 - 331 3 - May 

332 - 400 4 - May 

401 - 490 5 - June 

491 - 625 6 - June 

626 - 790 7 - July 

791 - 902 8 - Julv 



AO - Administrative Order 

AG - Attorney General's Opinions 

C - Correction 

FR - Final Rule 

GS - General Statute 

JO - Judicial Orders or Decision 

M - Miscellaneous 

\P - Notice of Petitions 

PR - Proposed Rule 

TR - Temporary Rule 



ADMINISTRATION 

Auxiliary Services, 4 PR 

Motor Fleet Management Division, 794 PR 

AGRICULTURE 

Gasoline and Oil Inspection Board, 336 PR 
Structural Pest Control Committee, 332 PR 
Veterinary Division, 342 PR 



ECONOMIC AND COMMUNITY 

Banking Commission. 629 PR 
Departmental Rules, 801 PR 



DEVELOPMENT 



ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management, 211 PR, 655 PR 

Departmental Rules, 826 PR 

Environmental Health, 223 PR 

Environmental Management, 190 PR, 416 PR, 500 PR, 644 PR, 830 PR 

Governor's Waste Management Board, 564 PR 

Health: Epidemiology, 140 PR 

Health Services, 52 PR, 659 PR 

Marine Fisheries, 530 PR 

NPDES Permits Notices, 1, 107 

Radiation Protection, 136 PR 



900 



7:8 NORTH CAROLINA REGISTER July 15, 1992 



CUMULA TIVE INDEX 



Vital Records, 565 PR 

Wildlife Resources Commission, 28 PR, 133 PR, 408 C, 449 PR, 551 PR 

Wildlife Resources Commission Proclamation, 176 

FINAL DECISION LETTERS 

Voting Rights Act, 106, 174, 406, 493, 628, 793 

GOVERNOR/LT. GOVERNOR 

Executive Orders, 401, 491, 626, 791 

HUMAN RESOURCES 

Aging, Division of, 121 PR, 346 PR 

Day Care Rules, 123 PR 

Economic Opportunity, 5 PR 

Facility Sen-ices, 1 1 1 PR, 177 PR, 496 PR, 634 PR 

Medical Assistance, 4 PR, 415 PR, 496 PR, 816 PR 

Mental Health, Developmental Disabilities and Substance Abuse Services, 111 PR. 297 FR, 409 PR, 809 PR 

Social Services Commission, 183 PR 

INDEPENDENT AGENCIES 

Housing Finance Agency, 450 PR, 576 PR 

INSURANCE 

Consumer Services Division, 125 PR 

Departmental Rules, 7 PR 

Engineering and Building Codes, 19 PR, 643 PR 

Fire and Rescue Services Division, 17 PR 

Hearings Division, 124 PR 

Life and Health Division, 22 PR, 347 PR 

Property and Casualty Division, 20 PR 

Seniors' Health Insurance Information Program, 132 PR 

JUSTICE 

Alarm Systems Licensing Board, 27 PR, 189 PR, 643 PR 

General Statutes Commission, 353 PR 

State Bureau of Investigation, 188 PR, 499 PR 

LICENSLNG BOARDS 

Certified Public Accountant Examiners, Board of, 355 PR 

Cosmetic Art Examiners, 360 PR 

Electrolysis Examiners, Board of, 69 PR, 700 PR 

Nursing, Board of, 232 PR, 700 PR 

Professional Engineers and Land Surveyors, 566 PR 

Speech and Language and Pathologists and Audiologists, 705 PR 

LIST OF RULES CODIFIED 

List of Rules Codified, 72, 362, 452, 584 

PUBLIC EDUCATION 

Elementary and Secondary, 852 PR 

REVENUE 

License and Excise Tax, 712 FR 
Motor Fuels Tax Division, 361 FR 

STATE PERSONNEL 

Office of State Personnel, 237 PR, 705 PR 



7:8 NORTH CAROLINA REGISTER July 15, 1992 901 



CUMULA TIVE INDEX 



TAX REVIEW BOARD 

Orders of Tax Review Board, 494 

TRANSPORTATION 

Highways, Division of, 228 PR, 856 PR 
Motor Vehicles, Division of, 68 PR, 142 PR 



902 7:8 NORTH CAROLINA REGISTER July 15, 1992 



NORTH CAROLINA ADMINISTRATIVE CODE 

The full publication consists of 53 volumes, totaling in excess of 1 5,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the full publication including supplements can be 
purchased for seven hundred and fifty dollars ($750.00). Individual volumes may also be purchased with 
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PRICE LIST FOR THE SUBSCRIPTION YEAR 

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Volume Title Chapter Subject Subscription* Quantity Price 

1 - 52 Full Code All titles $750.00 

1 - 37 Administration 90.00 

1 - 24 Agriculture 75.00 

25 - 52 Agriculture 75.00 

1 - 4 Auditor 10.00 

1 - 2 ECD (includes ABC) 45.00 

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1 - 2 Correction 60.00 

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1 


1 


2 


2 


3 


2 


4 


3 


5 


4 


6 


4 


7 


5 


8 


5 


9 


6 




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47 


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r 


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NC 27599